On Friday, September 19, 2025, the Trump Administration issued a proclamation, effective midnight September 20, 2025, banning the entry of all H-1B workers to the United States until a $100,000 fee is paid to the federal government. As drafted, the proclamation appeared to apply to all existing and prospective H-1B workers, prompting many panicked H-1B visa holders to attempt to return to the U.S. (or avoid travelling abroad) before Saturday’s midnight deadline.

On September 20, U.S. Citizenship and Immigration Service (“USCIS”) and U.S. Customs and Border Protection (“CBP”) published (duplicate) memorandums, clarifying that the new fee only applies to “petitions that have not been filed yet” and not to “beneficiaries of petitions that were filed before the effective date of the proclamation, are the beneficiaries of currently approved petitions, or have validly issued H-1B non-immigrant visas.”

Update: On October 20, USCIS provided further guidance on its H-1B webpage that addresses some of the key questions left unanswered by the proclamation and previous memorandums. Specifically:

• USCIS clarified that the new fee applies to I-129 petitions filed on or after September 21, 2025 only if: the beneficiary is outside the U.S. at the time of petition and does not already hold a valid H-1B visa, and either the I-129 requests “consular notification” upon approval, or USCIS approves the underlying petition but denies the request for change/extension of status. Therefore, under the new policy guidance, I-129 petitions to change and/or extend the status of a nonimmigrant already in the U.S. will not be subject to the new $100,000 fee unless USCIS denies the change of status request and the beneficiary is forced to travel abroad and re-enter the U.S.
• In effect, the new fee applies only to the first I-129 H-1B petition on behalf of an individual for whom consular processing is requested (e.g. an employer’s first I-129 petition for a potential new hire residing abroad who does not already hold an H-1B visa). Once the fee is paid and the H-1B worker is employed in the U.S., subsequent petitions to renew and extend their status in the U.S. filed either by the same or another employer should not require payment of a second fee as long as the petition requests extension of status and the request is approved by USCIS.
• The $100,000 fee must be paid in advance of filing the I-129 petition. The fee may only be paid online (no checks or money orders). Identifying information about the beneficiary must be provided and remain consistent throughout (no substitutions). Evidence that the fee was paid must be included with the I-129 petition at the time of filing or it may be denied. Importantly: it is not clear from the new guidance whether the $100,000 fee will be refunded if the petition is ultimately denied. The pay.gov website where the fee is paid electronically indicates that the fee may be refunded if the petition is denied but the USCIS website makes no mention of it in its policy announcement and all other H-1B related filing fees are non-refundable if a petition is ultimately denied.
• No blanket or categorical exemptions to the new fee policy are being granted at this time. The original proclamation mentions that exemptions may apply to an individual, a company, or an industry if DHS determines that it is in the national interest of the U.S. and does not pose a threat to the security or welfare of the U.S. The new guidance clarifies that exemptions will be granted only in “extraordinarily rare circumstances” where: 1) the Secretary has determined that a particular individual’s presence in the U.S. is in the national interest, 2) no American worker is available to fill the role, 3) the foreign worker does not pose a threat to the security or welfare of the U.S., and 4) that requiring the employer to pay the fee would “significantly undermine the interests of the U.S.” Employers may request an exception by submitting a request along with supporting evidence to H1BExceptions@hq.dhs.gov.

Finally, with the FY2027 H-1B lottery fast approaching, employers and their prospective H-1B employees should be aware that the H-1B program could change significantly in the coming months. In addition to the new $100,000 fee, the proclamation also directs the Secretary of Labor and the Secretary of Homeland Security to promulgate regulations that could drastically change the H-1B program by significantly increasing the minimum prevailing wage that employers must pay and by restricting H-1B approvals to only certain “high-skilled and high-paid aliens.” To that effect, on September 24 Homeland Security published a notice of proposed rulemaking that seeks to implement a new “weighted selection” for the annual H-1B lottery that gives preference to positions subject to the highest level prevailing wage. Homeland Security received more than 10,000 comments and as of October 31 the proposed regulation is still under review. Employers planning to participate in the FY2027 lottery should consult with their immigration lawyer as early as possible to better understand and prepare for the likely changes to the H-1B program.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.