• by MANJUNATH GOKARE

OVERVIEW

On September 19, 2025, the President issued a Proclamation on Restriction on Entry of Certain Nonimmigrant Workers, marking one of the most consequential changes to the H-1B visa program in decades.

The Proclamation states: “Effective 12:01 a.m. EDT on September 21, 2025, certain new H-1B petitions must include an additional payment of USD $100,000 as a condition of eligibility. The measure primarily applies to beneficiaries outside the United States and will remain in effect for 12 months unless extended.”

The Administration asserts that the H-1B program has been “deliberately exploited to replace, rather than supplement, American workers with lower-paid labor.” The stated goal is to ensure that the H-1B program benefits truly high-skilled professionals while protecting the U.S. workforce.

PURPOSE AND LEGAL FOUNDATION

The Proclamation cites Section 212(f) of the Immigration and Nationality Act (INA), which grants the President authority to suspend or restrict entry of noncitizens deemed detrimental to U.S. interests. However, the imposition of a monetary requirement—rather than an entry suspension—has raised serious legal questions.

Legal analysts argue that Section 212(f) authorizes entry restrictions, not fee creation. Critics contend the $100,000 payment functions as a tax—a power reserved to Congress under Article I, Section 8 of the Constitution. The Proclamation’s reliance on Section 212(f) is therefore likely to face judicial scrutiny.

WHO IS SUBJECT TO $100,000 PAYMENT

The Proclamation applies to:

1. New H-1B petitions filed on or after September 21, 2025, for beneficiaries outside the United States who do not hold valid H-1B visas
2. Petitions requesting consular or port-of-entry notification or pre-flight notification
3. Petitions requesting change of status, amendment, or extension, where USCIS later determines the beneficiary is ineligible (e.g., is not in a valid non-immigrant status or if the alien departed the United States before adjudication of change of status request).

This framework creates a clear distinction between workers abroad and those already in the United States. Beneficiaries with valid H-1B visas—even from prior employment—are exempt. Employers must therefore assess visa validity carefully before filing.

WHO IS NOT AFFECTED

The Proclamation does not apply to:

1. Petitions filed before 12:01 a.m. EDT, September 21, 2025.
2. Existing H-1B visa holders or validly approved petitions.
3. Lawful extensions, amendments, or changes of status granted for those inside the United States.
4. Travel and re-entry by individuals already holding valid H-1B visas.

Retaining valid visas provides substantial relief and with travel. Beneficiaries should protect their current H-1B visa stamps, making the transfers easier.

THE CONSULAR PROCESSING/PORT-OF-ENTRY NOTIFICATION

Even if a beneficiary is physically in the United States, selecting “consular processing” or “port-of-entry notification” or ‘pre-flight inspection” on Form I-129 triggers the $100,000 payment.

Employers should avoid checking these boxes unless consular processing is absolutely necessary.  Amending a petition later to add such notifications may retroactively trigger the payment—an issue still unaddressed by USCIS.

CHANGE-OF-STATUS FAILURE SCENARIO

If USCIS denies a change-of-status request (for example, finding the worker out of status), the $100,000 fee must still be paid before the petition can proceed. This introduces extraordinary risk for employers filing change-of-status cases, as an adverse finding could impose retroactive liability.

Given the complexity of status determinations, employers should conduct internal audits and maintain meticulous documentation before filing.

HOW AND WHEN TO PAY

Petitioners must make the $100,000 payment through Pay.gov before filing the petition with USCIS. Proof of payment or proof of exemption from DHS must accompany the initial filing. Petitions filed without this documentation will be denied outright.

Important: Payment confirmation need only show that the transaction was scheduled, not necessarily completed, though USCIS has yet to clarify this nuance.

Employers should factor in extra processing time to:

1. Secure internal approval for the $100,000 expenditure
2. Complete payment on Pay.gov
3. Attach proof of payment or exemption
4. File the petition

EXCEPTIONS GRANTED BY DHS

The Department of Homeland Security may grant limited exceptions where:

1. The H-1B worker’s presence is in the national interest
2. No qualified U.S. worker is available
3. The worker poses no threat to U.S. security or welfare
4. The required payment would significantly undermine U.S. interests

Employers seeking such exceptions must send detailed requests and supporting documentation to H1BExceptions@hq.dhs.gov.

LEGAL CHALLENGE AND IMPLICATIONS

On October 3, 2025, a coalition of universities, healthcare organizations, labor unions, and religious groups filed a lawsuit in the U.S. District Court for the Northern District of California.

The plaintiffs argue that the $100,000 fee violates the separation of powers, misuses Section 212(f), and fails to meet Administrative Procedure Act (APA) standards.

 Courts may issue a preliminary injunction halting the rule’s enforcement. Even if upheld temporarily, Legal and political pressures could force modification before its scheduled expiration in September 2026.

SECTOR-SPECIFIC IMPACTS

Technology: Major tech firms can absorb costs but will restrict H-1B hiring to senior, high-value roles. Startups and mid-sized firms will find the fee prohibitive, potentially shifting innovation offshore.

Education and Nonprofits: Universities, schools, and nonprofits employing specialized faculty or clergy face disproportionate burdens, effectively barring access to needed talent.

Strategic and Practical Considerations

1. Existing H-1B holders: unaffected; maintain visa validity.
2. New filings: consider U.S. presence in other visa categories (F-1, L-1, O-1) before filing H-1B petitions.
3. Employers: evaluate workforce needs early and determine eligibility for national-interest exemptions.
4. Education and nonprofit sectors can request categorical exemptions.

KEY TAKEAWAYS

The $100,000 payment is a substantial procedural and financial change for H-1B employers.

1. Beneficiaries already in the U.S. and maintaining lawful status are shielded from the fee
2. Litigation and policy revisions are expected; employers should remain vigilant for updates
3. Filing timing, visa status, and exception documentation are now critical determinants of eligibility

NEXT STEPS AND GLF GUIDANCE

The Proclamation directs the Secretary of Labor to propose new prevailing wage rules and the Secretary of Homeland Security to prioritize admission of high-paid and high-skilled H-1B workers. These measures signal a broader policy shift emphasizing “quality over quantity” in H-1B admissions.

At GLF, we recommend employers:

1. Review of all planned filings for compliance and timing
2. Evaluate potential exception eligibility
3. Maintain detailed records of status and travel for all H-1B employees
4. Seek legal counsel before any filing to mitigate the risk of denials or retroactive liability

For case-specific questions or guidance on the above matter, please contact: https://gokarelaw.com/contact-us/

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