Presidential Proclamation Introduces $100,000 Fee Requirement for H-1B Workers Outside the U.S.
Today, the President issued a new Proclamation Restricting the Entry of Certain Nonimmigrant Workers. Much like this year’s travel ban, the Proclamation targets foreign nationals abroad, prohibiting H-1B entry unless the sponsoring employer pays a $100,000 fee for each petition.
Beginning at 12:01 a.m. eastern daylight time on Sunday, September 21, and lasting for at least 12 months, H-1B workers outside the U.S. will not be permitted to enter unless the sponsoring employer pays a $100,000 fee per petition. USCIS is also barred from adjudicating any Out of Country H-1B petition for a worker outside the U.S. unless the $100,000 fee is paid.
A narrow “national interest” exception is available, although its parameters have not yet been defined. We are awaiting further agency guidance, as the situation is likely to evolve.
For now, we recommend that:
- H-1B employees remain in the US and avoid international travel until more guidance is available, and
- H-1B holders currently abroad consider returning before midnight on September 21 if possible.
The Proclamation also directs the Department of Labor and the Department of Homeland Security to issue regulations revising prevailing wage requirements and prioritizing high-wage, high-skill H-1B cases.
We anticipate litigation challenging the new fee since new visa fees typically require legislation passed by Congress or formal rulemaking and public notice and comment. However, the President's scope of authority may be greater with regard to banning the physical entry of H-1B visa holders into the U.S.
We are closely monitoring this development. While the Proclamation is effective September 21, the details of how the $100,000 fee and related restrictions will be implemented remain vague, and significant questions are likely to be clarified through forthcoming DHS and State Department guidance, as well as ensuing litigation.
We will provide updates as this develops.
