What Employers Need To Know About The New H-1B Executive Order

On September 19, 2025, the White House issued a Presidential Proclamation imposing a $100,000 filing fee for certain H-1B workers.

The advent of this Proclamation has created a lot of uncertainty. The Department of Homeland Security has begun to issue clarifying guidance, and we expect more in the coming days, but some aspects of this initiative are already clear, and we lay them out below.

Several groups have already announced that they intend to challenge the legality of the Proclamation since USCIS filing fees must bear a reasonable relationship to the cost for the agency to provide that service and the agency must also first publish them in the Federal Register.A federal judge may therefore quickly enjoin the Proclamation, preventing its implementation while the litigation proceeds.

In the interim here are some key takeaways:

1. The effective date isSunday Sept 21 at 12:01 am EST. This means that any covered petition submitted as of that date and time must be accompanied by proof of payment of the $100,000 fee.
2. Most importantly, the Proclamation only applies prospectively, to petitions that have not yet been filed. This means that individuals and employers who have already filed their H-1B petitions and received approval from USCIS, are unaffected by the new $100,000 fee. USCIS and CBP have both issued memos to their managers, making this clear.The White House has also issued its own clarification.
3. This also means that H-1B holders should not be afraid to travel outside the U.S. CBP has instructed its staff that the Proclamation does not impact H-1B holders who travel, and the White House has confirmed this. CBP is also telling airlines overseas to board all H-1B passengers with valid visas and passports.
4. Similarly, employers filing an I-129 H-1B petition with a change of status, extension of status or change of employer for an employee in the U.S. should not have any issues.
5. As of now, the new fee only applies for the upcoming year. In April 2026, the State Department, DOJ, DOL, and DHS must jointly notify the White House if they recommend that these restrictions be continued for another year.
6. Once the rule takes effect, DHS is authorized to carve out exceptions for certain individuals, companies, or industries if it determines that to do so is in the U.S. national interest and does not pose a security threat.While this type of provision is not uncommon in laws of this type, it remains to be seen whether, and if so how often, DHS will avail itself of this authority, and if so, how it will construe this broad standard.The Courts could also view the way DHS implements this exception provision as arbitrary and capricious.

Additional Guidance and Commentary

• It appears the primary intent of the Proclamation is to target I.T. workers who are overseas and hoping to be selected in the March 2026 H-1B lottery. If they are overseas and their visa number is selected in the lottery, then the employer will have to file an I-129 petition, indicate consular processing, and pay the $100,000 filing fee prior to filing the petition.
• When Congress created the H-1B program in 1990, it did not tie it to proving that there was a shortage of U.S. workers. At the time there was a known shortage of I.T. workers, so Congress only mandated that the position require a 4-year degree related to the duties of the position and that wages would not adversely affect U.S. workers.Congress also set an annual quota on the number of new H-1B visa holders.
• It stands to reason that the Courts may find that Congress alone can make substantive changes to the H-1B program, and therefore the $100,000 filing fee is an impermissible attempt to change the basic structure of the program.
• The EO also directs DOL to review and prioritize H-1B petitions and visas for the most highly skilled and highly paid workers. The EO cites the H-1B Labor Condition Application (LCA) requirement as outlined in 8 U.S.C. 1182(n). The congressional statute cited in the EO requires that H-1B wages be on par with what U.S. workers are being paid for the same position and job requirements and that the H-1B wage not adversely impact U.S. worker wages.
• It remains to be seen how this will play out.Since DOL sets the 4 level prevailing wage already, the presumption is they are already accurate and protecting U.S. workers. https://flag.dol.gov/wage-data/wage-search
• Limiting the H-1B program to only the highest paid and highest skilled workers would seem to thwart the intent of Congress which limited the H-1B program to professional occupations involving at least a relevant 4 year degree.Therefore this area seems ripe for litigation as Congress wrote in the statute that the program must protect American wages but it did not require that only the highest skilled and highest paid workers (Level 4) be accepted.
• It's also possible that DOL may start commencing more H-1B wage and hour audits to determine if employers are paying at least what the agency believes is the correct prevailing wage level for the position.

Conclusion

Despite the great uncertainty in the first 24 hours after the EO was signed, employers can now take comfort that their current H-1B employees should be unaffected by the order.The intent of the E.O. is primarily to stem the future flow of I.T. workers from overseas, which the Administration feels causes U.S. wages to drop and is leading to rising unemployment in this sector.Also, if the wage aspects of the EO withstand a court challenge, then employers can expect to pay higher wages to H-1B workers in the future.

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