By Prime Path Immigration Law Firm Limited USA, on Immigration Updates
If your company depends upon the H-1B visa program, contact Prime Path Immigration Law Firm Limited USA to discuss the application process and possible alternative visa strategies.
On Friday, September 19, 2025, President Donald Trump signed a Proclamation titled “Restriction on Entry of Certain Nonimmigrant Workers” aimed at reforming the H-1B visa program. The guidance, released by USCIS on October 20, 2025, outlines which petitions are subject to a new $100,000 fee, as well as limited exceptions.
Who is not subject to the Fee
- Current H-1B holders and those filing for amendments, extensions, changes of status- including F-1 to H-1B transitions, while inside the U.S.
- Petitions filed before September 21, 2025.
- Individuals with valid H-1B visas already in the U.S.
- Recent international college graduates who are sponsored for H-1B status while in the U.S.
Who is Subject to the Fee
- New H-1B petitions filed on or after September 21, 2025 (12:01 a.m. EDT) where the beneficiary is outside of the U.S. and does not hold a valid H-1B visa.
- Petitions requesting consular notification, port of entry notification, or pre-flight inspection.
- Petitions filed as changes of status, amendments or extensions where USCIS determines the beneficiary is ineligible for the COS/EOS/amendment in the U.S. and issues a consular approval.
- Workers who must leave the U.S. before a petition is adjudicated.
Exceptions:
The Department of Homeland Security (DHS) may waive the $100,000 fee only if:
- The worker’s presence serves the national interest;
- No qualified U.S. worker is available
- No security risk exists; and
- Payment would undermine U.S. interests.
Legal and Political Context
- Two federal lawsuits (including one by the U.S. Chamber of Commerce) challenge the proclamation’s legality, arguing it exceeds presidential authority and bypasses congressional rulemaking.
- The lawsuit raises two different separation of powers challenges. It first asserts that the Proclamation imposes a new fee in violation of the statutory scheme Congress created for existing H-1B fees, and separately that it imposes a new fee or tax on H-1B visas in violation of Congress’s exclusive authority to impose taxes.
- The lawsuit also challenges the Proclamation’s imposition of a $100,000 fee even though language in the Immigration and Nationality Act (INA) only authorizes fees specifically to cover the actual costs of adjudicating cases. It also challenges the Proclamation under the Administrative Procedure Act, claiming that the imposition of the $100,000 fee should have been made with notice to the public in a rulemaking.
- A coalition of health care providers, educators, and religious organizations filed a separate challenge, citing harm to essential services and workforce stability.
- Bipartisan House lawmakers have urged the administration to rescind the fee, warning it will hurt U.S. competitiveness, particularly for startups and small technology firms.
Next Steps
- Review all pending and upcoming H-1B petitions to confirm whether they involve consular processing.
- Adjust recruitment and sponsorship strategies to prioritize in country filings where feasible.
- Assess alternative visa categories.
