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The $100,000.00 question: The USCIS’s clarification on the Presidential Proclamation, restriction on entry of certain non-immigrant workers

11/11/25

By: Christopher M. Lewis

In late September of 2025, the Trump administration issued the “Presidential Proclamation on Restriction on Entry of Certain Nonimmigrant Workers” (hereinafter the “Proclamation”). Pursuant to the Proclamation, “the entry into the United States of aliens as nonimmigrants to perform services in a specialty occupation… is restricted, except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000.00…” Under the Proclamation, the Department of Homeland Security and the Department of State retain the authority to deny entry to the United States to H-1B nonimmigrant applicants for whom the prospective employer has not paid the $100,000.00 fee. Initially, the Proclamation was understood to apply to all new H-1B visa petitions filed at or after 12:01 a.m. eastern daylight time on September 21, 2025. However, on October 20, 2025, the United States Citizenship and Immigration Services (hereinafter “USCIS”) provided further guidance to employers regarding the new fees associated with H-1B visa petitions.

The H-1B is a non-immigrant visa that allows American employers to temporarily hire foreign workers in specialized occupations that require a bachelor’s degree or higher. Employers are required to file the H-1B visa petition on behalf of the prospective employee with the USCIS. Employers are also generally responsible for paying the fees associated with H-1B visa petitions on behalf of the prospective employee. Employers must also complete the H1-B electronic registration process to the extent the employer is subject to the annual H-1B visa cap. The current number of H-1B visas issued each fiscal year is capped at 65,000, with an additional 20,000 available for individuals who have earned a master’s degree or higher from a U.S. educational institution.

The USCIS has now provided clarification regarding the $100,000.00 H-1B visa fee. The Proclamation applies to H-1B petitions filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, on behalf of beneficiaries who are outside of the United States and do not have a valid H-1B visa. In addition, if an employer’s petition seeks a change of status, amendment or extension of stay and the USCIS determines that the individual is ineligible for the change of status, amendment or extension, then the Proclamation will also apply. However, the Proclamation will not apply in instances where an employer’s petition filed after September 21, 2025 seeks a change of status, amendment or extension of stay and the USCIS determines that the individual inside the United States is eligible for such a request. Furthermore, the Proclamation does not apply to H-1B visa issues before September 21, 2025 or current H-1B visa holders (including those traveling internationally).

The USCIS’s clarification provides some guidance for employers to follow when submitting H-1B visa petitions on behalf of their current and prospective employees. However, it is imperative for employers to stay informed as this dialogue around H-1B visa petitions continues to progress.

For more information, please contact Christopher M. Lewis at chris.lewis@fmglaw.com or your local FMG attorney.   

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.