H-1B Proclamation Clarified: Only New H-1B Petitions Affected, Agencies Confirm

Highlights

Over the weekend, federal agencies clarified that the proclamation applies only to new, not-yet-filed H-1B petitions. Current H-1B holders, approved petitions, pending petitions as of September 21, 2025, and individuals with valid H-1B visas are not affected.

A new presidential proclamation, "Restriction on Entry of Certain Nonimmigrant Workers," published on September 19, 2025, imposes unprecedented restrictions on H-1B visa processing and entry, effective 12:01 a.m. EDT on Sunday, September 21, 2025. The policy requires a $100,000 fee for H-1B visa issuance or admission and introduces new compliance obligations for U.S. employers. Unless blocked by litigation, the proclamation will remain in place for 12 months.

This past weekend, several government agencies including U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), and the U.S Department of State (DOS) issued guidance clarifying that the proclamation applies only to new H-1B petitions that have not yet been filed. It does not affect current H-1B holders, approved petitions, pending petitions as of September 21, 2025, or individuals with valid H-1B visas.

We anticipate the proclamation to face legal challenges.

Major Takeaways

• One-time $100,000 petition fee requirement for new H-1B entry and processing.
• Under the proclamation, entry into the United States in H-1B status will be restricted unless a $100,000 fee is paid. This same fee requirement applies to H-1B petitions filed on behalf of beneficiaries who are currently outside the U.S.
• These provisions are expected to take immediate effect, impacting beneficiaries of "new" H-1B petitions currently abroad.
• H-1B extensions of stay for individuals already in the U.S. are exempt, according to USCIS. We are awaiting explicit confirmation that H-1B change of employer, change of status, and amended petitions will also be exempt.
• The proclamation carves a limited exemption for individuals or petitioners who can demonstrate that the beneficiary's entry is in the national interest of the United States and does not pose a threat to national security or public welfare.

Who May Be Affected (Awaiting Further Guidance)

• U.S. companies relying on global talent pools for specialized roles.
• Petitioners currently preparing to file cap-exempt or cap-subject H-1B petitions for workers abroad for fiscal year 2027.
• International students on F-1 OPT/STEM OPT seeking to change status to H-1B from abroad after September 21, 2025.

Who This Does Not Apply To

• H-1B beneficiaries already in the U.S. at the time of filing and current H-1B visa holders.
• H-1B beneficiaries of a petition filed and approved or pending by September 21, 2025.
• Beneficiaries qualifying for a national interest exemption, where petitioners can demonstrate the entry is in the national interest of the U.S. and poses no threat to national security or public welfare.

Implementation and Compliance Requirements

• U.S. Department of Homeland Security (DHS) and DOS will verify the $100,000 fee payment before issuing H-1B visas or permitting entry.
• Employers must retain proof of payment prior to filing petitions with USCIS.
• Noncompliance (e.g., failure to pay or retain proof) may result in petition denial or rejection.
• Petitioners should prepare for increased scrutiny and possible additional documentation requests.

Next Steps for Employers and Petitioners

• Employers should review current and planned H-1B petitions for workers outside the U.S. and assess whether the $100,000 fee applies with the help of immigration counsel.
• Petitioners should document all fee payments once possible to submit and ensure proper retention for audit purposes.
• If applicable, begin preparing national interest exemption documentation once additional guidance is available on the criteria.
• Consider engaging immigration counsel to determine options, including timing, eligibility, alternative visa strategies (if applicable), and risk mitigation.

Looking Forward

• Further regulatory guidance from DOS and the Department of Labor (DOL) is expected in the coming weeks.
• The Secretary of State will issue additional restrictions on the use of B-1 visas by H-1B petition holders seeking early entry.
• The proclamation directs:
  • The DOL to revise prevailing wage rules, likely raising prevailing wage thresholds for H-1B workers.
  • The DHS to prioritize H-1B admissions based on skills and salary, reshaping long-term eligibility criteria.

We know you will have many questions. Given the current uncertainty, we strongly recommend minimizing or avoiding international travel unless absolutely necessary. Please reach out to us before making any travel plans so we can evaluate your specific circumstances.

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