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H-1B Travel Ban--Trump Presidential Proclamation unless $100,000 Fee Paid

On September 19, 2025, President Trump issued a proclamation restricting entry or re-entry into the U.S. of any person in H-1B status without payment of a new $100,000 fee. The proclamation, titled Restriction on Entry of Certain Nonimmigrant Workers date  is effective 12:01 a.m. EDT Sunday, September 21, 2025, and is set to expire after one year.

Chaos and panic ensued in the immediate aftermath of the proclamation. In the days that followed, the U.S. Citizenship & Immigration Services (USCIS), Customs & Border Protection (CBP) and the U.S. Department of State (DOS) all issued clarifying guidance regarding the Trump Proclamation. All three agencies confirmed that the $100K rule did not apply to foreign nationals outside the United States who are applying for H-1B visa stamps based on H-1B petitions filed before September 21, 2025. They also confirmed that the rule did not apply to H-1B extensions of status for foreign nationals in the United States who were already in H-1B status and did not depart the U.S. However, many unanswered questions remained regarding the applicability of the $100K Fee. 

This article has taken into account reliable and verified information from governmental sources, and adopts the viewpoint of American Immigration Lawyers Association and other professional organizations as we continue to monitor developments. We will update periodically when there has been reasonable opportunity to analyze reliable and verified information regarding implementation. Below are the salient points in the Proclamation, taking into account updated information from the USCIS:

• The proclamation was effective 12:01 a.m. EDT September 21, 2025. It expires in 12 months but may be extended.
• Petitions Subject to the Fee: The USCIS clarified that the $100,000 payment applies to new H-1B petitions filed on or after September 21, 2025 on behalf of beneficiaries who are outside the United States and do not have a valid H-1B visa. The fee also applies to petitions filed on or after that date that request consular notification, port of entry notification, or pre-flight inspection for an alien in the United States. Additionally, if a petition filed on or after September 21, 2025 requests a change of status, amendment, or extension of stay, and the USCIS determines the beneficiary is ineligible for that benefit, the fee will apply. This includes situations where the beneficiary is not in valid nonimmigrant status or departs the United States prior to adjudication of a change of status request.
• Petitions and Visa Holders Not Subject to the Fee: The proclamation does not apply to any previously issued and currently valid H-1B visas, or any petitions submitted prior to September 21, 2025. Holders of current H-1B visas may continue to travel in and out of the United States without triggering the fee requirement. Crucially, the fee does not apply to petitions filed on or after September 21, 2025, that request an amendment, change of status, or extension of stay for an alien inside the United States where USCIS grants such amendment, change, or extension. Beneficiaries of these approved petitions will not be subject to the payment even if they later depart the United States and apply for a visa or seek to re-enter on a current H-1B visa. This updated USCIS guidance is especially relevant for FY 2027 H-1B cap cases that will be filed in the spring/summer of 2026. If an H-1B cap petition subject to the lottery is filed with a change of status request, and that change of status is approved, the $100,000 fee will not apply.
• In Summary: H-1B petitions that are approved for an extension of stay, amendment, or change of status – including change of employer petitions – will not be subject to the proclamation or the associated $100,000 fee. Foreign nationals in the United States with approved H-1B petitions will not become subject to the proclamation or the associated fee if they depart the United States. Consular notification H-1B petitions filed after the effective date of the Proclamation will be subject to the $100,000 fee, regardless of whether the foreign national was in the United States at the time of the H-1B filing.
• Question still to be answered: Though the new guidance addresses many questions about the application of the proclamation, it is not yet clear whether the fee is required of foreign nationals with an existing valid H-1B visa if they are the beneficiary of a new petition that would otherwise be subject to the proclamation. For example, it is not yet known whether the proclamation and associated fee would apply to a foreign national with a valid H-1B visa from a previous employer and an approved consular notification petition filed by a new employer.
• USCIS will not adjudicate petitions unless they are accompanied by proof of payment of the $100,000 fee for H-1B workers who are currently outside of the U.S. Petitioners must make the $100,000 payment through pay.gov prior to filing the H-1B petition with the USCIS. Proof of scheduled payment from pay.gov or evidence of an exception granted by the Secretary of Homeland Security must be submitted at the time of filing. Petitions subject to the fee that are filed without proper payment documentation will be denied. The only exception would appear to be where the petition is filed for an extension, amendment, or change of status request but the request is denied and USCIS approves the petition for consular notification, thereby triggering the fee. In such cases, it appears that USCIS will issue instructions to the petitioner to pay the fee when it notifies the petitioner that the petition cannot be approved for an extension, change, or amendment of status.
• Eligibility for National Interest Exceptions from the new H-1B fee: The Secretary of Homeland Security may grant exceptions in “extraordinarily rare circumstances” where the foreign nationals presence as an H-1B worker is in the national interest, no American worker is available to fill the role, the alien does not pose a security threat, and requiring the payment would significantly undermine U.S. interests.
• The U.S. Embassy in Singapore announced in a tweet on September 29, 2025 that the $100,000 fee does not apply to the H-1B1 for Singaporean citizens. Presumably it does not apply to Chilean citizens as well.
• The Secretary of State will issue guidance to prevent the misuse of B-1/B-2 visas by beneficiaries of approved H-1B petitions who have start dates prior to 10/1/26. The purpose is presumably to prevent them from entering and filing a change to H-1B status and avoiding the $100,000 fee.
• Directs the Department of Labor to propose changes to the H-1B prevailing wage system. Though the Administration’s most recent regulatory agenda did not include a plan for prevailing wages, a proposed regulation could be issued in the coming months. During the first Trump Administration, an attempt to raise prevailing wages was blocked by a federal court and ultimately withdrawn. A new regulation would go through notice-and-comment rulemaking procedures and take several months to complete. [New guidance: A proposed rule to revise the H-1B cap selection process by introducing a weighted system favoring higher wage levels was was published on September 24].
• Immigration attorneys and analysts expect swift lawsuits to be filed against the Proclamation from The American Immigration Lawyers Association (AILA), the American Immigration Council, and other organizations. The argument is that the fee is illegal and that the executive's authority is limited to setting fees that recover the cost of processing applications, not to impose fees designed to limit visa usage. Moreover, the Proclamation is an egregious violation of the Administrative Procedures Act (APA).

 

Please contact our immigration law firm for additional discussion of this category and alternative options.

[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]