Uncertainty Reigns on New Initiatives
President Trump’s Proclamation of a national emergency brought on by H-1B workers and a resultant $100,000 fee starting on September 21, 2025, has left a certain level of confusion in its wake. The original Proclamation seemed to target those who were outside the United States with the $100,000 fee but has since been adjusted to include all “new” H-1B petitions. This temporary proclamation is supposed to last for twelve months but will be reassessed within 30 days from the completion of the Fiscal Year 2027 H-1B Cap.
The confusion about this Proclamation stems from how the administration is going to interpret the various types of H-1B petition – for example – a change of status petition from an H-4 to an H-1B for someone who had previously been on a H-1B visa.
Currently the following seems to be the official position of the administration:
- The Proclamation will only apply prospectively to petitions that have not yet been filed with USCIS. It will not be applicable for those “beneficiaries currently (with) approved petitions,” or those who have filed petitions prior to 12:01 a.m. ET on 21 September 2025, or those who possess a valid H-1B visa. It is expected that H-1B visa renewals will also not be impacted.
- This will be a one-time $100,000 fee per petition.
- Special waivers may be granted by the Secretary of Homeland Security for petitions, organizations or companies on grounds of national interest.
There is tremendous uncertainty about how this fee will be administered, to which petitions it will apply and whether the amount will be refunded if the petition is rejected. There is also the matter of court litigation on this matter which may void some or most parts of this order. Countries from Britain to China are racing to introduce new talent visa categories and processes to attract this H-1B talent, many of whom are expected to leave the United States.
At this time, individuals with the following circumstances seem to be protected:
- Present in the United States with a valid H-1B Visa and approval
- Those who have filed cases requiring H-1B visa approvals with the USCIS prior to September 21, 2025
- Those who have a valid H-1B visa and are applying for an extension
There is still a lot of uncertainty about whether this new fee will apply to many other situations. For example:
- Those who had previously approved H-1B visas but are now on another status
- Those who are changing employers
- Those who are in H-1B status under Sec 104 or 106 exemptions
- There is also the matter of travel outside the United States and how the Customs and Border Protection Officers will administer this new rule and how individuals will prove that they are not subject to the $100,000 fee
Initially, this fee was expected to exclude those (especially students) who were on another status in the United States and were looking to change their status to that of an H-1B non-immigrant. The follow up guidance seems to not allow for that exemption and makes every new H-1B petition subject to the new fee.
In addition to the Proclamation, the Department of Labor (“DOL”) has announced Project Firewall, through which it will force employers to prioritize the hiring of American workers over those on H-1B visas. The DOL has different mechanisms for such enforcement actions, and it is still unclear how companies can respond to these new initiatives. We will have further guidance on initiatives that companies can take to ensure compliance.
This is an evolving situation. It seems that the administration is interpreting the Proclamation more narrowly than what was included in the original version of the announcement. We will keep abreast of this and provide periodic updates.
At this point here are our recommendations:
- File all H-1B extensions as early as allowed
- Avoid all discretionary travel outside of the United States (including to dependent territories like Puerto Rico and U.S. Virgin Islands)
- Create processes for On-Site DOL and FDNS site visits
Please feel free to contact USILAW with any questions or issues that you may have. You may reach us via telephone at +1 (202) 618 4540 or via email at info@usilaw.com.