On Friday, September 19, 2025, the Trump Administration published a Proclamation requiring that all H‑1B visa petitions be accompanied by a $100,000 fee. The order also prohibited the re-entry to the U.S. of any H‑1B workers who previously had not paid the $100,000 fee. The Proclamation took effect on September 21, 2025 at midnight.
Due to the short implementation window and the lack of any accompanying agency guidance, attorneys and employers across the country relied on a plain reading of the order and urged any H‑1B workers outside the U.S. to return to the country prior to September 21, 2025 if possible.
On September 21, 2025, USCIS issued an H‑1B FAQ stating that the Proclamation does not apply to any previously issued H‑1B visas or petitions submitted prior to the effective date of the Proclamation, nor does it change any fee payments required to be submitted with any H‑1B “renewals.” The FAQ states further that the fee is to be paid only once upon submission of a new H‑1B petition. In addition, it states that current H‑1B visa holders may travel in and out of the U.S.
There are still several unanswered questions which we hope to see more guidance on soon, including:
- How and to whom should the $100,000 fee be paid?
- Must the fee be paid by H‑1B employers, or can it be paid by the H‑1B beneficiary?
- The FAQ states that the Proclamation, “Does not change any payments or fees required to be submitted in connection with any H‑1B renewals. The fee is a one-time fee on submission of a new H‑1B petition.” These two sentences could be read to contradict one another when applied to individuals currently in the U.S. in H‑1B status, as follows:
- The statement that there is no change in fee payments for H‑1B “renewals” indicates that the fee does not apply for any extensions of stay for H‑1B individuals currently in the U.S.
- Note: “renewal” is not a legal term in the H‑1B petition context. The regulatory term for a request to extend the amount of time for which H‑1B status holders may remain in the U.S. is “extension of stay.” The use of a colloquial term in the only available agency guidance creates some ambiguity around the meaning of this part of the guidance.
- However, the next sentence stating that the fee is a one-time fee payable upon submission of a “new” H‑1B petition indicates that the fee should be paid once on behalf of every H‑1B nonimmigrant – or at least upon submission of a “new” H‑1B petition.
- It should also be noted that the term “new” as it relates to H‑1B filings does not have a fixed regulatory definition and could be read to mean different things. For example, the I‑129 Form asks whether the petition is for “new employment,” a continuation of previously approved employment without change with the same employer, a change in previously approved employment, new concurrent employment or change of employer to work for a new employer in H‑1B status. The term “new” may refer only to petitions for new employment for individuals who are outside the U.S. or who are not currently in H‑1B status; or it could also include requests for new concurrent employment, or change of employer to a new employer. However, it could also refer to amended petitions, as immigration regulations at 8 C.F.R. §214.2(h)(2)(i)(E) states that when there is a material change in an H‑1B worker’s job duties, an “amended or new petition” must be filed with USCIS. Moreover, the American Competitiveness in the Twenty First Century Act (AC21) as implemented into 8 C.F.R. §214.2(h)(2)(i)(H) refers to change of employer H‑1B filings as petitions for “new employment.”
Does that mean that the fee is only to be paid on behalf of individuals who have never previously held H‑1B status? Or will it be required for extensions of stay for current H‑1B status holders on whose behalf the fee has not previously been paid?
- Will the fee apply to existing H‑1B nonimmigrants who change employers?
- Will the fee apply to an H‑1B petition filed for new, concurrent employment with a second H‑1B employer?
- Will the fee apply to H‑1B nonimmigrants who have a valid petition but who do not have a currently valid H‑1B visa stamp in their passport, and who apply for a new H‑1B visa while abroad?
- Does the Proclamation have any impact on the ability of H‑4 dependents to travel internationally if the H‑1B principal has not paid the $100,000 fee?
- Does the Proclamation apply to individuals in H‑1B status who do not have a currently valid H‑1B visa but who qualify to use Automatic Visa Revalidation?
- Does the Proclamation apply to individuals who previously held H‑1B status but changed to another status such as H‑4 or B‑2, and are changing back to H‑1B status?
