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.
While this clarified that the impact is not as widespread as initially communicated through the proclamation, many questions remain. It is not yet clear what the government interprets as "new" filings, other than initial issuance of H-1B petitions for beneficiaries outside of the U.S., and if it is only intended for beneficiaries who are outside of the U.S. at the time of filing.
For example, questions are still unresolved as to whether the proclamation applies to beneficiaries applying for a change of status from within the U.S.
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.
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?
If subject to the H-1B visa fee, the U.S. Consulate will 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.
Note that it is not clear if the fee must be paid by the employer, as with other H-1B fees, or if the beneficiary may pay for it. We presume it is an employer-paid fee.
It has also not been made clear how and when to make the payment.
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?
It is our current understanding that the fee does not apply to amendments, extensions, and changes of employer for beneficiaries who are inside the U.S. at the time of filing. However, at this time it is still unclear whether the $100,000 fee will apply to those filing such petitions from outside the U.S., and it is also unclear if it applies to those filing a change of status application from within the U.S., since those may be considered "new" filings. The attorneys at Garfinkel Immigration Law Firm will alert clients as additional guidance becomes available.
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." However, at this time the process for requesting a National Interest exception remains unclear. It is possible that the exception will be assessed similarly to the national interest exception criteria implemented during the COVID travel and visa restrictions.
Does the proclamation affect cap-exempt institutions?
At this time, yes, it affects all employers.
The proclamation unfortunately 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. The government confirmed that this fee will apply for future H-1B cap-subject filings unless eligible for the national interest exception detailed above.
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). It is our current understanding that such cases 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?
It is generally unclear if the proclamation applies to beneficiaries applying for a change of status from within the U.S., and if a national interest exception would be required for these cases.
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. Multiple groups are working on legal challenges to the proclamation at the time of publication. The attorneys at Garfinkel Immigration will monitor these lawsuits closely and alert clients about any applicable rulings. If you or your organization are interested in participating as a plaintiff, please contact us.
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?
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. There continue to be many unanswered questions about the implementation of the proclamation at the time of publication, including:
- Whether visas will be issued for renewals, changes of employer, amended petitions, cap-exempt petitions, or for H-1B1s filed after the effective date without fee payment?
- Whether extensions of stay applications, including change of employer or amended petitions for those in lawful H-1B status, or change of status applications filed on or after September 21, 2025, will be adjudicated without payment?
- Whether cap-exempt employers will be subject to the ban and imposition of the fee given references to the lottery?
- How payment of the new fee can be made?
- Does the fee apply to H-4 dependents?
- What documentation or information would an H-1B visa holder need to present to CBP in order to demonstrate payment?
The team will continue to alert clients as additional information on implementation becomes available.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
