New $100,000 H-1B Fee Proclamation – Implications and Action Steps

Background & Overview of the Proclamation

On September 19, 2025, President Trump signed a presidential proclamation titled Restriction on Entry of Certain Nonimmigrant Workers.

The proclamation took effect at 12:01 a.m. Eastern Daylight Time on September 21, 2025, and is slated to remain in force for 12 months (until September 21, 2026), unless extended. The core of the proclamation is the imposition of a $100,000 supplemental fee on new H-1B petitions (i.e., petitions “submitted after” the effective date).

However, the proclamation is not yet a complete, fully operational rule. Many specifics remain ambiguous. Below is a breakdown of what is known, what is uncertain, and what stakeholders should plan.

What We Know (Confirmed Provisions & Guidance)

Based on a White House Fact Sheet; the U.S. Citizenship and Immigration Services (USCIS) FAQ; a U.S. Customs and Border Protection (CBP) agency memorandum;  a statement and FAQs published by the U.S. Department of State (DOS); the proclamation text itself; and early legal commentary; several points are relatively clear at this juncture:

• Fee applies to new H-1B petitions – The $100,000 supplemental fee must accompany any new H-1B visa petition submitted after 12:01 a.m. EDT on September 21, 2025.
• Fee Exemptions – The proclamation does not apply to:
1. New H-1B petitions filed with USCIS before 12:01 a.m. on September 21, 2025.
2. H-1B renewals (extensions) with the same employer for persons in the U.S. in H-1B status.
3. New H-1B visa stamp applications at a U.S. Consulate outside of the U.S., as long as the underlying H-1B petition was filed before September 21, 2025.
• Travel - The proclamation does not appear to affect current H-1B visa holders’ ability to travel into and out of the U.S.
• National Interest Waiver – The proclamation provides fee exemption for an individual who is determined to serve the U.S. national interest.

In short, the proclamation creates a significant new obstacle to hiring H-1B workers. In practice, the supplemental fee will impact H-1B cap petitions filed during the April–June 2026 window for Fiscal Year 2027, as well as new (first time) H-1B petitions filed by cap-exempt employers.

Key Uncertainties, Risks, and Open Questions

Because implementing regulations, payment mechanisms, and further agency guidance have not yet been issued, many important issues remain unresolved. Below is a non-exhaustive list of critical open questions and risks:

• It is unclear whether the fee applies only to an individual’s “first-time” H-1B petitions, or whether “new” encompasses change-of-employer petitions filed after the effective date.
• There is currently no published mechanism for submitting the supplemental $100,000 fee, nor information as to whether the fee must be paid at the time of filing or later during the USCIS Request for Evidence (RFE) process. 
• The proclamation contemplates possible exemptions if employment is deemed in the “national interest” or does not pose a threat to U.S. security/welfare, but no guidance has yet been issued on how to obtain such exemptions, what criteria would apply, or which agencies will approve them.
• The proclamation has already been challenged in court by a broad coalition that filed a complaint on October 3, 2025, alleging overreach of executive power, and inconsistency with the statute that authorizes the H-1B visa program as well as the Administrative Procedure Act. In response to this lawsuit (and potentially others), courts may block enforcement of all or part of the proclamation.
• It is unclear whether cap-exempt organizations may qualify for the national interest exception or be excluded from the supplemental fee requirement. Under the currently available guidance, no exemption is provided for cap-exempt employers.
• The proclamation will be unlikely to impact employees in H-1B status who are currently in the U.S., but travel abroad and reentry may be risky until clarifications and further guidance are issued.

Until these issues are resolved, employers must proceed with caution and assume and prepare for risks in new filings involving H-1B beneficiaries outside the U.S.

Recommendations: What Employers Should Do

Given the uncertainty and high stakes, below are recommended steps to mitigate risk and protect your workforce and immigration strategy:

1. Pause H-1B filings
   Where possible, defer H-1B petitions for new candidates, such as H-1B employment transfer petitions or petitions for beneficiaries currently outside the U.S., until payment procedures and exemptions are clarified.
2. Evaluate alternate visa categories
   Explore O-1 (extraordinary ability), L-1(intracompany transfers), TN (for Canadians), E-visas (for U.S. treaty nations), or direct employment via remote arrangements outside the U.S. Some employers should also consider more aggressive use of employment-based immigrant visas (EB-1, EB-2 with NIW), where feasible.
3. Assess travel plans and advise employees
   For H-1B employees in the U.S., consider avoiding international travel unless required. Policies under the Trump administration have been subject to rapid change and immediate implementation.
4. Model financial impact
   Start modeling the financial implications of paying the additional $100,000 fee per petition (for critical hires) and compare against alternative strategies.
5. Track developments & be ready to adapt
   Monitor for agency guidance (USCIS, DHS, DOS), payment-mechanism rules, exemptions protocols, and litigation outcomes. Be agile in adjusting your visa strategy accordingly.
6. Engage legal counsel proactively
   Work with immigration counsel to assess risk, draft waivers or exception requests (if available), and keep litigation contingency plans.

Conclusion

The September 21, 2025, proclamation marks a significant shift in U.S. immigration policy. Although the principal requirements are now clear, substantial implementation details remain uncertain. For now, employers should proceed conservatively, allocate resources strategically, and explore alternative immigration strategies.

This alert is for informational purposes only. If you have any questions, please contact Jungmin Choi.

Epstein Becker Green Staff Attorney Elizabeth A. Ledkovsky contributed to the preparation of this alert.