Background

On September 20^th, 2025, President Donald Trump signed a proclamation that sought to reshape one of the most relied-upon employment-based visa programs in the United States. The new policy – which went into effect at 12:01am EDT on September 21^st – required employers to pay a $100,000 fee for each new H-1B petition. It also proposed heightened wage requirements and closer scrutiny from the Department of Labor (DOL).

Naturally, this caused widespread panic and raised countless questions. Since then, USCIS and other agencies have provided updated guidance to address a number of those ambiguities.

Key Updates

Approximately one month after the September 19 presidential proclamation, USCIS provided additional guidance on the matter, addressing many but not all open questions.

• Affected:
  • New H-1B petitions on behalf of beneficiaries who are outside the United States and do not have a valid H-1B visa. This applies to petitions filed at or after 12:01 a.m. EDT on September 21, 2025, requesting consular notification, port of entry notification, or pre-flight inspection for an foreign national in the U.S.
  • For petitions requesting a change of status, amendment, change of employer, or extension of stay, if USCIS determines that the beneficiary is ineligible for such change, amendment or extension (e.g., is not in a valid nonimmigrant visa status or if the beneficiary departs the U.S. prior to adjudication of a change of status request), the Proclamation will apply.
• Not Affected:
  • Requests for an amendment, change of employer, or extension of status from within the U.S., where such amendment, change, or extension is granted.
  • Requests for a change of status from within the U.S. where such change is granted.
  • Those with previously-issued and currently valid H-1B visas, or petitions submitted prior to the cut-off time.
    • Also does not prevent any H-1B visa holders, or those following petition approval, from traveling in and out of the U.S.
• Still Unclear:
  • Whether the fee is required if the foreign national has a valid H-1B visa with a prior petition, but is the beneficiary of a new petition that would otherwise be subject to the fee (e.g., the beneficiary has a valid H-1B visa from a previous employer and a new petition was approved with consular notification).
• How and When to pay?:
  • Petitioners should submit the required $100,000 payment using pay.gov, following the instructions at the following link: https://www.pay.gov/public/form/start/1772005176.
  • Payment (or proof of exception) must be made prior to filing a petition with USCIS, otherwise the petition will be denied.
  • H-1B program rules prohibit beneficiaries to cover any H-1B related fees (unless not considered to be in the business interest of the company). So, H-1B beneficiaries cannot pay this fee on their own behalf.
• Exceptions granted by DHS:
  • In the “extraordinarily rare circumstance” where the Secretary has determined that a particular worker’s presence in the U.S. as an H-1B worker is (1) in the national interest, (2) that no American worker is available to fill the role, (3) that the worker does not pose a threat to the security or welfare of the United States, and (4) that requiring the petitioning employer to make the payment would significantly undermine the interests of the United States.
  • Those seeking an exception may send requests and supporting evidence to H1BExceptions@hq.dhs.gov.

Legal Challenges

To date, two federal lawsuits have been filed to challenge the proclamation. Despite neither requesting a temporary stay or preliminary injunction, plaintiffs in both cases maintain that the President does not have the authority to create new requirements for the program, which was established by Congress.

Conclusion

At Wilner & O’Reilly, we specialize exclusively in U.S. immigration law. We are continuously monitoring related updates so as to best serve our clients. If you have any questions, please don’t hesitate to contact us to discuss if and how this proclamation may impact you.