Employment Law Report
Will your next H-1B visa cost $100,000?
On September 19, 2025, the Trump administration issued a proclamation that appeared to require a $100,000 payment for a noncitizen to enter the United States with an H-1B visa after 12:01 am Eastern Time on September 21. This caused many U.S. employers and H-1B workers to panic. Within 24 hours, the administration clarified that the $100,000 fee would only apply prospectively. But many questions remained.
On October 20, 2025, U.S. Citizenship and Immigration Services (USCIS) provided information regarding implementation of the proclamation. Payment must be made through pay.gov before a U.S. employer files an H-1B petition with USCIS. The U.S. employer/petitioner must submit proof of payment or evidence that it received an exception along with the petition.
- When does the Proclamation apply?
USCIS confirmed that the proclamation does not apply to:
- Petitions filed before 12:01 a.m. Eastern Time on September 21, 2025.
- Previously issued and currently valid H-1B visas.
The agency also resolved some questions by identifying the following situations when an H-1B petition is filed on or after 12:01 am Eastern Time on September 21, 2025:
- No fee required if the beneficiary is in the United States but the H-1B petition requests consular, port of entry, or preflight inspection notification.
- No fee required to file an H-1B petition if USCIS approves an amended H-1B petition, or approves a request for extension of stay in H-1B status or a request for change of status from another nonimmigrant status to H-1B. (A beneficiary must be in the United States when a U.S. employer files an H-1B petition requesting that USCIS approve either an extension or change of status in addition to approving the H-1B classification.)
- No fee required for a beneficiary of an H-1B petition for an approved amendment, extension of stay, or change of status who later travels abroad and applies for an H-1B visa based on that approved petition and/or seeks to reenter the United States on a valid H-1B visa.
- National interest exception
USCIS’s description of the national interest exception seems to be more restrictive than the presidential proclamation. The proclamation gives the DHS secretary discretion to provide an exception to any noncitizen, and by category, “all [noncitizens] working for a company, or all [noncitizens] working in an industry” if the secretary determines that the hiring of such H-1B worker(s) “is in the national interest and does not pose a threat” to national security or welfare. But the DHS secretary has only provided for individual determinations.
USCIS describes the DHS secretary’s grant of a national interest exception as an “extraordinarily rare circumstance” where the secretary determines that four criteria have been met:
- The noncitizen’s presence in the United States is in the national interest.
- No “American worker is available to fill the role.”
- The noncitizen does not pose a threat to the national security or welfare.
- Requiring the U.S. employer/petitioner to pay the fee would “significantly undermine U.S. interests.”
A U.S. employer must submit the exception request to a dedicated DHS email address before filing the H-1B petition. USCIS requires that “evidence of the exception” be submitted with an H-1B petition for which the fee otherwise would be due upon filing or the agency will deny the H-1B petition.
- Lawsuits challenging the Proclamation
Two lawsuits have already been filed that challenge the H-1B proclamation.
The first, Global Nurse Force v. Trump, filed in the U.S. District Court for the Northern District of California, shows the range of U.S. employers and individuals affected by the proclamation. For example, one plaintiff is a union with members who are involved with medical residency training and education, advancing patient care, and expanding access to healthcare. Another plaintiff is a religious missionary order which relies on the H-1B category for religious workers with foreign language fluency. The second lawsuit, Chamber of Commerce of the United States v. U.S.. Department of Homeland Security, was filed in the U.S. District Court for the District of Columbia by the Chamber and the Association of American Universities (AAU) on behalf of their members. On October 24, 2025, the Chamber and the AAU filed a motion to stop the enforcement of the proclamation against them and their members while the lawsuit is pending, or alternatively for a decision that the proclamation is unlawful and vacating it (so the proclamation would not apply to anyone). The court has given the government until November 28 to oppose the motion and the court could decide the motion any time after December 8.
We recommend that you consult with an immigration attorney prior to filing an H-1B visa petition.
