USCIS and CBP Provide Updates to Trump Proclamation Which Purports to Require a $100,000 Fee for H-1B Workers Entering the United States

As discussed in our prior alert, on September 19, 2025, President Trump issued a Proclamation titled “Restriction on Entry of Certain Nonimmigrant Workers.” This Proclamation has conflicting language but initially appeared to require the payment of a $100,000 fee for any H-1B worker who enters the United States as of 12:01 am on Sunday, September 21. This requirement will take effect for 12 months, until September 21, 2026. The stated rationale in the Proclamation is that there has been “systemic abuse” of the H-1B program.

USCIS Updates on Proclamation

On Saturday, September 20, US Citizenship and Immigration Services (USCIS) director Joseph Edlow issued a Memorandum which clarified and limited the impact of the Proclamation. According to the USCIS Memorandum:

“This proclamation only applies prospectively to petitions that have not yet been filed. The proclamation does not apply to aliens who: are the beneficiaries of petitions that were filed prior to the effective date of the proclamation, are the beneficiaries of currently approved petitions, or are in possession of validly issued H-1B non-immigrant visas. All officers of United States Citizenship and Immigration Services shall ensure that their decisions are consistent with this guidance. The proclamation does not impact the ability of any current visa holder to travel to or from the United States.” (emphasis added)

Potential Concern for H-1B Cap-Exempt Employers

On Sunday, September 21, USCIS issued an “H-1B FAQ” to its website, which causes additional confusion. The Friday Proclamation stated that the $100,000 filing fee only applies to H-1B beneficiaries who are outside the US at the time of filing. However, the Sunday USCIS FAQ states that the $100,000 filing fee is applicable to “any new H-1B visa petitions,” including H-1B lottery filings and “any other” new H-1B petitions.

It is unclear if the reference to “new” H-1B petitions is only applicable to beneficiaries who are outside the United States, or if it applies to new H-1B Change of Status petitions. If it is the latter, this $100,000 filing fee would be required for any H-1B cap-exempt employers filing new H-1B petitions as of today.

CBP Guidance

On Saturday, September 20, Customs and Border Protection (CBP) posted the following on X:

“Let’s set the record straight: President Trump’s updated H-1B visa requirement applies only to new, prospective petitions that have not yet been filed. Petitions submitted prior to September 21, 2025 are not affected. Any reports claiming otherwise are flat-out wrong and should be ignored.”

This is welcome guidance for travelers who have existing H-1B status and confirms that this language in the Proclamation can be ignored.

Impact of Proclamation

The Proclamation appears to require that any new H-1B petition filed for a worker who will enter the United States must be “accompanied” by a $100,000 payment, with limited exceptions. And it also may require that any new H-1B petition (as opposed to an H-1B amendment or extension) filed for a worker who is in a different visa status in the United States must be “accompanied” by a $100,000 payment.

The Proclamation does not provide any guidance on how to pay the $100,000 fee, or “supplement” a petition with the $100,000 payment.

Exceptions

In addition, the $100,000 payment does not need to be paid if the Department of Homeland Security determines that the hiring of the H-1B worker “is in the national interest and does not pose a threat to the security or welfare of the United States.”

Based on the language in the Proclamation, we initially reported that the $100,000 payment is not required for future petitions filed for H-1B workers who are already in the United States. However, this is now unclear based on the USCIS FAQ.

Likely Judicial Challenge

We continue to expect that this Proclamation will be challenged in federal court. USCIS fee increases generally must be implemented either by publication in the Federal Register or by the implementation of new laws. This dramatic fee increase, issued through a Proclamation, will likely face judicial scrutiny and could be delayed by a temporary injunction from a federal court.

Conclusion

Petitioners filing new H-1B petitions should consult with immigration counsel prior to filing.

Please contact a member of the Mintz Immigration Team for more information: https://www.mintz.com/industries-practices/immigration

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