Business Immigration Insights

In a rapidly evolving situation broadly impacting the business immigration community, the White House issued a proclamation on Friday, September 19, 2025, implementing significant restrictions on H-1B entry and introducing a $100,000 fee requirement. The situation has been marked by initial confusion followed by crucial clarifications.

Timeline

• September 19, 2025 – The Proclamation
  • The White House signed the "Restriction on Entry of Certain Nonimmigrant Workers" proclamation, effective 12:01 AM EDT on September 21, 2025. The initial language includes sweeping restrictions on H-1B entry and a mandatory $100,000 fee.

• September 20, 2025 – Agency Clarifications
  • Both U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP) issued memoranda that substantially narrowed the scope of the proclamation. These clarifications proved essential in understanding implementation, but still leave some questions unanswered.

• September 21, 2025 – White House FAQ
  • The White House and Department of State (DOS) released additional guidance, providing further clarity on the proclamation's application, but again leaving some questions unanswered.

What We Know: The Current Impact

Based on the federal agencies' clarifications, the proclamation applies as follows:

H-1B Workers Currently Inside the United States

• Approved Petitions: Workers with USCIS-approved H-1B petitions filed before September 21, 2025, are not impacted. These individuals may continue to work for their sponsoring employer and travel internationally without being subject to the new restrictions. This includes workers whose petitions were approved months or years ago and are currently working in valid H-1B status. Questions remain on whether these workers will be impacted when it is necessary to file new H-1B petitions with USCIS.
• Pending Petitions: Workers whose employers filed H-1B petitions before September 21, 2025, but have not yet received a decision from USCIS, are not impacted by the new requirements. These cases will continue to be adjudicated under the previous rules, without the $100,000 fee requirement. Questions remain on whether these workers will be impacted when it is necessary to file subsequent H-1B petitions with USCIS.
• Future Filings: Any new H-1B petitions filed on or after September 21, 2025, for workers currently in the United States will be subject to the new $100,000 fee requirement. See additional information below regarding uncertainties remaining around the types of H-1B petitions to which the fee applies.

H-1B Workers Currently Outside the United States

• Approved Petitions with Valid Visas: Foreign nationals who have both a USCIS-approved H-1B petition (filed before September 21, 2025) and a valid H-1B visa stamp in their passport may enter the United States without restriction. This includes workers who are abroad for business travel or vacation and hold valid documentation.
• Approved Petitions and Applying for New H-1B Visas: Foreign nationals who have a USCIS-H-1B approved petition (filed before September 21, 2025) and are applying for an H-1B visa stamp at a U.S. Embassy or Consulate may secure the visa stamp and enter the United States without restriction.
• Pending Petitions Filed Before September 21: Workers whose employers filed H-1B petitions before the effective date, even if still awaiting USCIS approval, are not subject to the new restrictions. If approved, they can depart the United States, obtain an H-1B visa, and return without the fee requirement.
• New Petitions: Any H-1B petitions filed on or after September 21, 2025, for workers outside the United States must be accompanied by either proof of the $100,000 fee payment or qualification for a national interest exemption before USCIS will adjudicate the case. See additional information below regarding uncertainties remaining around the types of H-1B petitions to which the fee applies.

The most significant clarification from USCIS and CBP is that the proclamation applies only to petitions filed on or after September 21, 2025. This dramatically reduces the impact compared to initial interpretations. However, further agency clarifications could change this guidance with little notice, so travel abroad should be limited pending further guidance from the agencies involved.

** This proclamation does not affect any other nonimmigrant or immigrant visas.

Critical Uncertainties Remaining

Despite recent clarifications from the White House and federal agencies, several important issues remain:

Extensions, Amendments, and Changes of Employer

The White House FAQ states that the proclamation "does not change any payments or fees required to be submitted in connection with any H-1B renewals" and clarifies that "the fee is a one-time fee on submission of a new H-1B petition." However, USCIS and CBP guidance does not provide clear direction how to distinguish between "renewals" and "new petitions," leaving uncertainty about the application of the fee to various petition types. This discrepancy between White House and agency guidance creates ongoing uncertainty for employers and practitioners.

Specifically, the agencies have not clearly addressed whether the fee applies to:

• H-1B extensions of stay: Requests to extend the authorized period of stay for workers already in H-1B status with the same employer
• Amended petitions: Modifications to existing approved petitions, such as changes in job duties, work location, or salary
• Change of employer petitions: H-1B portability cases where a worker transfers from one sponsoring employer to another
• Change of status applications: Cases where individuals in the United States in another status seek to change to H-1B status

Cap-Exempt Institutions

Universities, nonprofit hospitals, and research organizations typically file cap-exempt H-1B petitions. The guidance does not explicitly exempt these institutions from the $100,000 fee, creating uncertainty for the academic and research sectors.

National Interest Exemptions

While the proclamation references potential exemptions for certain industries or occupations deemed in the national interest, no guidance exists on which sectors qualify, the application procedures for exemptions, and the timeline for determinations.

Fee Payment Mechanisms

The government acknowledges it has not yet provided instructions on how employers can pay the $100,000 fee.

Practical Implications for the FY2027 H-1B Lottery

The White House FAQ confirms that the new requirements will apply to the FY2027 H-1B lottery season (beginning in March/April 2026). This means employers participating in next year’s lottery must be prepared to pay the $100,000 fee for each selected petition; the fee represents a one-time payment per petition, not per renewal; and cap-exempt institutions remain uncertain about their obligations.

Strategic Recommendations

For Employers

1. Inventory Current Cases: Identify all pending and approved H-1B petitions to understand which workers are protected under the pre-September 21 filing rule.
2. Travel Restrictions: Advise H-1B workers to postpone discretionary international travel until implementation details are clearer.
3. Budget Planning: Begin assessing the financial impact of the $100,000 fee on future H-1B hiring strategies.
4. Documentation: Ensure H-1B workers traveling have and carry copies of agency memoranda and approval notices.

For H-1B Workers

1. Current Visa Holders: Those with valid H-1B visas should be able to travel, but should carry comprehensive documentation. However, it is strongly recommended to postpone any non-emergent travel until further clarification is provided.
2. Pending Cases: Workers with petitions filed before September 21 should not be impacted by the new restrictions.
3. Travel Caution: Discretionary international travel should be postponed until clearer guidance emerges.

Conclusion

While initial panic following the proclamation has been somewhat alleviated by agency clarifications, uncertainties remain. Employers and H-1B workers should prepare for potential volatility as implementation details emerge and litigation challenges develop.

As this situation continues to evolve rapidly, employers should work closely with immigration counsel to navigate these changes and develop strategies for their H-1B workforce.