Publications

On September 19, 2025, a Presidential Proclamation was issued titled Restriction on Entry of Certain Nonimmigrant Workers to impose a one-time $100,000 fee on employers submitting new H-1B petitions on behalf of individuals currently outside the U.S. The proclamation became effective at 12:01 a.m. EDT on Sunday, September 21, 2025, and is set to expire after one year, unless extended. An extension would impact Fiscal Year (“FY”) 2027 H-1B workers who would be beneficiaries of employer H-1B petitions with validity dates starting on October 1, 2026.

In the days following the proclamation, the White House, along with the Department of Homeland Security (“DHS”) through its U.S. Citizenship and Immigration Services (“USCIS”) and Customs and Border Protection (“CBP”) agencies, the Department of State (“DOS”), and the Department of Labor (“DOL”), released additional guidance through FAQs, memoranda, and social media posts. While implementation details remain fluid, below are some key takeaways and practical considerations for H-1B employers and stakeholders.

Key Takeaways

• The proclamation restricts the entry of new H-1B workers who are outside the U.S., who will seek admission based on employer H-1B petitions submitted to USCIS after September 21, 2025.
• In recent guidance, USCIS and CBP have clarified the proclamation:
  • Does not apply to individuals who are beneficiaries of employer H-1B petitions that were approved or filed with USCIS prior to September 21, 2025.
  • Will not affect the ability of H-1B workers in possession of valid visas in their passports from traveling to and from the U.S. and confirmed that no existing H-1B visas have been revoked.
  • Does not impact H-1B “renewals” of visas through the U.S. Consulate/DOS or to “extensions” filed with USCIS (there are no changes to related fees).
• USCIS will not adjudicate “new” H-1B petitions filed after the effective date unless accompanied by proof of payment of the $100,000 fee.
• Case-by-case exemptions for individuals, companies, or industries are permitted if DHS determines that the U.S. entry of an H-1B worker is in the national interest and does not pose a threat to U.S. security or welfare.

With these key points in mind, the following overview provides context on the H-1B visa category affected by the proclamation.

Overview of the H-1B Visa Category Targeted by the Presidential Proclamation

The H-1B visa program arose out of the Immigration Act of 1990 to remedy the shortage of highly skilled labor in certain “specialty occupations.” H-1B temporary worker visa status is available to an individual who will perform services in a “specialty occupation” requiring at least a Bachelor’s degree or equivalent directly related to the position being sponsored. The degree requirement must be common to the industry or occupation. According to data for FY 2024, computer-related occupations accounted for nearly 64% of approved H-1B visa petitions. Further, employers commonly sponsor H-1B visas for advanced degree professionals including but not limited to doctors, veterinarians, scientists, biologists, chemists, teachers, professors, lawyers, architects, and C-Suite business and marketing executives.

There is an annual fiscal year quota of 65,000 H-1B visas. An additional 20,000 H-1B visas are reserved for individuals holding Master’s degrees or higher (the “Master’s Cap”). Following changes implemented for FY2021, all employers sponsoring employees for new quota-subject H-1B visas must use a USCIS online account to electronically register each beneficiary for the selection process and pay the associated $215 registration fee in March (exact registration dates are released by USCIS). If the number of registrations exceeds the annual quota for H-1B visas, then USCIS will first conduct a lottery for employees with Master’s degrees or higher to select 20,000 registrations. Any employees not chosen for the Master’s Cap will be a part of the general pool for a second lottery to select 65,000 registrations. Registrations are beneficiary-centric, meaning USCIS selects registrations by unique beneficiary (i.e., regardless of how many employers submit a separate registration, each unique beneficiary only has one entry in the “lottery” based on a valid passport or other travel documentation number).

Exceptions to the annual H-1B quota include petitions by or on behalf of the following groups: institutions of higher education or affiliated nonprofit entities; nonprofit or governmental research organizations; certain employees counted against the cap during the past six years, and those already in H-1B status who are applying for an extension, amendment, or change of employer.

Once a specialty occupation professional is granted temporary H-1B visa status, the maximum period of time that can be spent on U.S. soil is six (6) years, with employer petitions issued for a maximum validity period of three years at a time (there can be some “extra” regulatory petition extensions beyond six years in specific circumstances).

An employer is legally required to pay the H-1B worker (and any other H-1B workers with similar experience and qualifications) the higher of the prevailing wage or the actual wage for the occupation. The prevailing wage is the wage rate set for the occupational classification in the geographical area of employment by either a union contract that contains a wage rate applicable to the occupation or the weighted average of wages paid to similarly employed workers who have substantially comparable jobs in the geographic area of employment. The government release prevailing wage data every July 1. The wage obligation only applies to H-1B workers, and not to U.S. workers. However, the actual wage is determined by what the employer pays all other employees, if any, with similar experience and qualifications for the specific employment.
Looking Ahead

The proclamation is expected to be challenged in court for constitutionality and fee-setting authority. There may be implementation injunctions. In the meantime:

• Agencies are expected to issue further guidance on:
  • • How employers are to make the new $100K fee payment.
    • How H-1B workers are to present evidence of fee payment.
    • If the fee applies to “new” change of employer or amended petitions.
    • If the fee applies to “new” change of status to H-1B petitions for individuals who are already in the U.S. pursuant to another visa status.
    • If the fee applies to CAP-EXEMPT employers (e.g., institutions of higher education or nonprofit entities affiliated with them, nonprofit or governmental research organizations), who are not subject to the annual fiscal year H-1B quota and registration process.
    • What the industry-specific and qualifying criteria, application processes, evidence, and timelines are for an exemption in the national interest.
• The Department of Homeland Security is to begin rulemaking to prioritize the highest paid and most qualified foreign nationals. A proposal to implement a weighted system has already cleared Office of Management and Budget review and was published for public feedback.
• The Department of Labor is to propose changes to the H-1B prevailing wage
• During the first Trump Administration, a federal court blocked an attempt to raise prevailing wages, and the proposal was ultimately withdrawn.
• Within 30 days of the next annual fiscal year H-1B registration cycle in March 2026, federal agencies are to jointly submit a recommendation to the President regarding whether the proclamation should be extended.
• The Department of State will issue guidance to prevent misuse of B visas by H-1B beneficiaries with start dates prior to October 1, 2026.

Employers should monitor agency updates closely and consult immigration counsel before initiating any H-1B petitions and before any existing H-1B worker makes international travel/consular visa processing plans.

Resources

• White House Proclamation
• USCIS H-1B FAQ
• DOS H-1B FAQ
• CBP Statement on X

This alert is for informational purposes only and is not intended to be construed or used as legal advice. Wiggin and Dana’s Business Immigration and Compliance Practice Group will continue to provide briefings with material employment-based immigration case updates. If you have any questions, please contact the practice group leader, Najia Khalid, at 203.498.4314 or nkhalid@wiggin.com.

Law Clerk (Admission Pending) William Butler contributed to this article.