Immigration
Understanding the New H-1B Proclamation: What Employers and Workers Need to Know
By Buchanan Attorneys Khushbu Patel and Dilip Patel
In a move that has sent ripples through the U.S. immigration landscape, the Trump administration announced a new proclamation impacting the H-1B visa program on Sept. 19, 2025. While initially causing widespread concern among employers and prospective H-1B workers, subsequent clarifications have shed light on its scope and implications. But many questions still loom, prompting legal challenges and sparking debate about the authority and fairness of the new rules.
New H-1B Proclamation
The proclamation introduced a new fee — a hefty $100,000 — that noncitizens seeking H-1B visas would need to pay before entering the United States. The initial announcement created panic, with many fearing that this fee would apply immediately and broadly to all H-1B applicants. However, within 24 hours, the White House clarified that the fee would only apply prospectively — that is, only to petitions filed on or after Sept. 21, 2025, at 12:01 a.m. Eastern Time.
USCIS further explained the implementation details on Oct. 20, 2025. Applicants and employers now know that to comply, the fee must be paid via pay.gov before a U.S. employer files an H-1B petition. Failure to do so results in the petition being denied — a significant hurdle for many employers and workers.
When does the fee apply?
Understanding when the fee applies is crucial for employers and prospective visa holders. According to USCIS:
- $100,000 fee applies if:
- The petition requests consular notification, port of entry notification, or pre-flight inspection for the beneficiary.
- The petition requests a change of status or amendment or extension of stay and USCIS rejects that request and requires the H-1B to be obtained outside the U.S. The rejection could be for various reasons, such as the beneficiary’s failure to maintain valid status inside the US or departure from US before the change, amendment, or extension petition was approved.
- $100,000 fee does not apply if:
- The beneficiary already holds an H-1B visa or status.
- The petition was filed before Sept. 21, 2025.
- The beneficiary receives approval of an H-1B petition filed as a change of status or amendment or extension of stay, even if filed on or after September 21, 2025. This includes beneficiaries of such approved petitions that later leave the US to obtain a visa stamp in their passport based on the underlying approved petition.
The “National Interest” Exception — A Narrow Door
The proclamation grants the DHS secretary the authority to issue exceptions, but only under strict criteria:
- The noncitizen’s presence must be in the national interest.
- No American worker is available to fill the role.
- The noncitizen does not threaten security or welfare.
- Requiring the fee would undermine U.S. interests.
An email address ([email protected]) is provided where those seeking the exception may submit a detailed request and supporting evidence in advance of filing the H-1B petition. However, USCIS describes these exceptions as “extraordinarily rare.”
Legal Challenges: Is the Proclamation lawful?
Legal challenges have already emerged. Two lawsuits — Global Nurse Force v. Trump and Chamber of Commerce of the United States v. DHS — argue that:
- The president lacks authority to impose such fees beyond what Congress has authorized.
- The fee functions as an unlawful tax and restricts lawful entry in violation of the H-1B statute.
- The implementation and scope are inconsistent with the law and the proclamation’s stated intent.
What does this mean for employers and workers?
The new fee, if enforced broadly, could significantly restrict the use of the H-1B program. Employers may face increased costs, and some may hesitate to sponsor foreign workers altogether. This could impact sectors like healthcare, technology, academia, and religious organizations, many of whom rely heavily on H-1B workers.
For workers, especially those outside the U.S., the fee will be a barrier to entry, delaying or preventing employment opportunities. For those already here, extensions and amendments seem less affected, but the overall climate of increased scrutiny and higher costs is likely to influence future hiring and retention.
Sept. 24, 2025 – Proposed Rule to Replace the Random Lottery Process with a “Weighted Selection”
While this proposed role for the weighted lottery system has not gone into effect, it is likely for the 2026 lottery process. Under the proposed rule, the employer must select one of four wage levels to pay beginning on the H-1B start date, based on the position occupational classification, salary, and area of employment.
Weighting by Wage Level:
- Wage Level I – entered once
- Wage Level II – entered twice
- Wage Level III – entered three times
- Wage Level IV – entered four times
The rule would reward employers that pay higher salaries and disadvantage those offering lower-paid or entry level jobs.
Final Thoughts
The H-1B proclamation represents a significant shift in U.S. immigration policy, with broad implications for employers, workers, and the economy. While some clarifications have emerged, many uncertainties remain, especially regarding legal authority and implementation. The ongoing lawsuits highlight the contentious nature of these changes and suggest that the final outcome could still be influenced by court decisions.
For now, employers and workers should stay informed, plan strategically, and prepare for potential adjustments as the legal landscape unfolds. The future of the H-1B program — and the opportunities it provides – may well depend on the resolution of these legal challenges.
Tampa Bay area welcomes Attorney Khushbu Patel
We are pleased to introduce Attorney Khushbu Patel to our readers. Khushbu is an experienced immigration attorney and has recently joined the Buchanan Ingersoll & Rooney law firm to work with Dilip Patel, who writes our immigration articles. Khushbu brings with her a wealth of knowledge in immigration law and a passion for helping individuals and families navigate the complexities of the immigration process.
Khushbu was born and raised in Richmond, Va., where she developed a strong foundation in legal principles and a deep commitment to serving her community. She earned her law degree from a respected institution, Rutgers Law School, where she developed a keen understanding of the challenges faced by immigrants in the United States.
She married in April 2024 and recently moved to the Tampa area with her husband, who works in commercial contracting. Khushbu’s move to Tampa not only marks a new chapter in her personal journey but also allows her to contribute her expertise to the growing community in the region. Fluent in Gujarati, she is an active member of the BAPS Swaminarayan Mandir in Thonotosassa, Florida.
We are thrilled to welcome Khushbu to our readers and look forward to the invaluable information she will provide to them in the field of immigration law.