President Donald Trump issued a proclamation Sept. 19 titled “Restriction on Entry of Certain Nonimmigrant Workers.” The proclamation requires a $100,000 fee for new H-1B visa petitions as of 12:01 a.m. EDT on Sunday, September 21, 2025. It is set to last for 12 months (unless extended).
Please note that the responses to these FAQs are provided for informational purposes only and should not be construed as legal advice. Impacted employers and foreign nationals should consult with an experienced immigration attorney to seek legal advice specific to their circumstances.
Who does the proclamation apply to?
United States Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP) both issued memos one day after the publication of the proclamation. The guidance clarified that the $100,000 fee for H-1B workers ONLY applies to new, prospective filings beginning Sept. 21 through the expiration of the order. Similarly, the Department of State (DOS) confirmed on its website that the proclamation applies to noncitizens seeking visa issuance or entry into the U.S. based on H-1B petitions filed with USCIS beginning Sept. 21.
USICS released additional guidance on Oct. 20, clarifying that the fee applies to petitions filed at or after 12:01 a.m. Sept. 21:
- For beneficiaries who are outside of the United States and do not have a valid H-1B visa;
- For those requesting consular notification, port of entry notification, or pre-flight inspection for a beneficiary who is inside the United States; or
- If USCIS determines that the beneficiary is ineligible for a requested change of status, amendment, or extension of stay application (where the fee is normally not applicable – see below), and USCIS consequentially approves the H-1B for consular notification, port of entry notification, or pre-flight inspection.
Who does the proclamation not apply to?
The guidance from USCIS and CBP stated that the proclamation did NOT apply to existing H-1B holders, including:
- Beneficiaries of petitions that were filed prior to Sept. 21.
- Beneficiaries of currently approved H-1B petitions – such beneficiaries may continue work and travel.
- Those who are in possession of a valid H-1B visa – such beneficiaries may continue work and travel.
- Petitions filed at or after 12:01 a.m. Eastern Daylight Time on Sept. 21 that are requesting an amendment, change of status, or extension of stay for a foreign national inside the United States. While not expressly stated in the USCIS guidance, this would also generally include petitions requesting a change of employer for beneficiaries who are inside the United States.
Can H-1B holders with a valid visa stamp travel?
Yes. H-1B visa holders with a valid visa stamp should not be affected by the proclamation, according to the guidance from USCIS and CBP. The team at Garfinkel Immigration generally advises that existing H-1B visa holders carry both memos when traveling internationally, in case they are needed (USCIS Memo, CBP memo).
Are H-1B petitions that are pending, but were filed before the effective date of the proclamation affected?
No, beneficiaries with pending H-1B petitions that were filed before the effective date of the proclamation (Sept. 21, 2025) should not be impacted and therefore not required to pay the $100,000 fee.
Are H-4 dependents affected by the proclamation?
This remains unclear. H-4 dependents are not specifically mentioned in the proclamation. However, their admission to the U.S. will likely be dependent on whether the principal H-1B beneficiary is subject to the $100,000 fee and if that fee is paid.
Will I be required to pay the fee when applying for my H-1B visa stamp?
In the guidance issued Oct. 20, USCIS stated that the payment must be made at this link before filing a petition, “as petitioners must submit proof that the payment has been scheduled from pay.gov or evidence of an exception from the $100,000 payment from the Secretary of Homeland Security at the time of filing the H-1B petition.” Petitions will be denied if they do not submit this proof. This means that any required fee would need to be paid prior to USCIS approval and visa stamping at the U.S. Consulate.
If subject to the H-1B visa fee, the U.S. Consulate may require evidence of the payment before issuing the visa stamp. The Department of State has confirmed that U.S. Consulates are otherwise restricted from issuing the visa stamp.
Will H-1B visa holders be required to pay the $100,000 fee when applying for an amendment/extension/change of employer and/or a change of status application?
No. The fee does not apply to amendments, extensions, nor changes of status, for beneficiaries who are inside the U.S. at the time of filing.
Are there exceptions to the proclamation?
Yes, the proclamation allows for exceptions for H-1B workers whose hiring and employment is in the “national interest and does not pose a threat to the security or welfare of the United States.”
The guidance issued by USCIS on Oct. 20 clarified that exceptions will be issued, on what seems to be a more narrow basis than as intended in the Proclamation. Specifically, it notes that an exception will be approved when it is demonstrated that:
- Being in the United States as an H-1B worker is in the national interest;
- No American worker is available to fill the role;
- The worker does not “pose a threat to the security or welfare of the United States”; and
- Requiring the petitioning employer to make the payment on the foreign national’s behalf would “significantly undermine the interests of the United States.”
Does the proclamation affect cap-exempt institutions?
At this time, yes, it affects all petitioners.
The proclamation unfortunately does not exempt any particular petitions and it extends to cap-exempt institutions such as universities, teaching hospitals, and nonprofit research organizations. However, such petitioners may benefit from including a national interest argument and request an exemption from the fee at the time of filing.
Does this mean that my employer will be required to pay a $100,000 filing fee for a FY2027 H-1B cap petition?
Yes, it will apply to beneficiaries who are outside of the United States and/or petitions that are requesting port-of-entry notification, pre-flight inspection, or consular notification – or unless a national interest exception is approved for the petitioner/beneficiary.
Does the proclamation affect H-1B physicians?
At this time, yes. A White House spokesperson told Bloomberg Law on Sept. 22 that the government is considering exempting physicians from the fee. Details are still emerging, but the clarification suggests potential exemptions for healthcare-related H-1B sponsorships, especially in medically underserved areas. The attorneys in the Firm’s Healthcare Specialty Practice Group continue to monitor the situation closely and will alert applicable clients as more details become available.
I’m outside the U.S. and my employer is filing an H-1B petition for me to work as a physician in an underserved area. Will this affect me?
At this time, yes, because the proclamation does not exempt cap-exempt institutions nor physicians who are applying based on a waiver under 212(l). Such petitions would need to be accompanied by an argument that the physician’s employment is in the national interest.
I’m inside the U.S. and my employer is filing an H-1B petition for me to work as a physician in an underserved area, or as a teacher. Will this affect me?
No, not if your petition is being filed as a change of status or extension of status. As noted above, the guidance from USCIS clarified that “the Proclamation … does not apply to a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, that is requesting an amendment, change of status, or extension of stay for a (foreign national) inside the United States where the (foreign national) is granted such amendment, change, or extension.”
Does the proclamation affect H-1B educators?
At this time, yes. There is currently no “blanket” exemption for educators. Again, such petitioners should consider including a national interest argument in the filing for a fee exception. The attorneys in the Firm’s Education Specialty Practice Group continue to monitor the situation closely and will alert applicable clients as more details become available.
Does the proclamation affect H-1B religious workers?
At this time, yes. There is currently no “blanket” exemption for clergy and religious workers. Again, such petitioners should consider including a national interest argument in the filing for a fee exception. The attorneys in the Firm’s Religious Worker Specialty Practice Group continue to monitor the situation closely and will alert applicable clients as more details become available.
Will the proclamation face litigation?
Yes. In reaction to the Trump administration’s $100,000 fee for new H-1B applications, several associations have pushed back, including a lawsuit filed by a group representing many organizations that rely in part on H-1B workers and a separate suit from the U.S. Chamber of Commerce.
The group that has sued the Trump administration over the new fee argues that the “arbitrary and capricious” fee is unlawful, the required regulatory process was not followed, and the administration failed to consider the harm to entities across the United States that rely on H-1B workers, including not only high-tech companies but also schools, churches, hospitals, nonprofits, and businesses.
The group that filed the lawsuit includes the American Association of University Professors, U.A.W. International, Global Nurse Force, Global Village Academy Collaborative (a charter school association), and the Society of the Divine Word’s Chicago Province. Representatives for the plaintiffs include Democracy Forward, the Justice Action Center, and the South Asian American Justice Collaborative.
Meanwhile, the U.S. Chamber of Commerce argued that the fee “overrides provisions of the Immigration and Nationality Act.”
Is there anything that my employer should do?
Employers should consult proactively with immigration counsel to assess H-1B alternatives, particularly for those who are cap-subject and would normally file petitions in the H-1B cap registration/lottery. Alternative visa classifications may include TN, L-1, O-1, E, etc.
Is there anything else to know about the implementation of the proclamation?
It appears that USCIS will issue a refund of the fee if the petition is ultimately denied.
The interpretation and guidance related to the “Restriction on Entry of Certain Nonimmigrant Workers” proclamation is a rapidly-evolving and fluid situation that the attorneys at Garfinkel Immigration are closely monitoring. The team will continue to alert clients as additional information on implementation becomes available.
Note: This story was first published Sept. 23 and last updated on Oct. 20.