Presidential Proclamation Introduces $100,000 Fee Requirement for H-1B Workers Outside the U.S. [Updated With CBP + USCIS + DOS Clarifications]

Updated 9/22/2025

Over the weekend, U.S Department of State (DOS) released its own FAQ on the Proclamation.

Taken together with memos from USCIS, CBP and comments from White House representatives, the guidance continues to raise more questions than answers.

Areas of confusion include:

• Scope of the $100,000 fee
• The DOS FAQ states that the Proclamation applies to “new petitions,” while USCIS and CBP memos describe it as applying “prospectively to petitions that have not yet been filed [as of September 21, 2025].” However, none of the agencies define whether this encompasses transfer, amendment, cap-exempt, extension, or concurrent employment petitions. In short, it remains unclear which types of petitions the $100,000 fee actually covers going forward.
• Nature of the fee
• There's no detail yet on how payment must be made or whether it must come directly from employers.
• Legal Authority & Durability
• A Proclamation imposing fees is unusual; normally Congress sets fees or USCIS adjusts them through regulation. It remains unclear whether this fee is legally enforceable and will withstand court challenges.
• Ambiguous exemptions
• Agencies are using terms such as “renewals,” “visas,” and “new” inconsistently and without clear definitions. For example, DOS states that “renewals” are unaffected—but does this mean only visa renewals handled by DOS, or does it also include transfers, amendments, cap-exempt filings, extensions, or concurrent employment petitions under USCIS jurisdiction?
• No guidance has been issued on national interest exemptions, including how they would apply or the process for requesting them.
• Future reforms mentioned vaguely
• The DOL/DHS rulemakings are just “contemplated,” leaving uncertainty about when or how they’ll be implemented. The Department of Labor is expected to raise prevailing wage levels, reshaping how H-1B salaries must be set.  The Department of Homeland Security plans to prioritize higher-paid, higher-skilled applicants in the H-1B lottery. Additional reforms are expected in the coming months.

Bottom line: The Proclamation establishes a $100,000 surcharge on all “new” H-1B petitions filed after September 21, 2025. However it, as well as the agency guidance and White House communications to date, leave open major questions about the scope, payment logistics, legal authority, and how the rule will apply across different H-1B categories. At present, the practical impact of this measure remains unclear.

Travel

Weaver Schlenger continues to advise that there is considerable risk associated with traveling internationally at this time.  All H-1B beneficiaries and their H-4 dependents are advised not to depart the U.S. and if outside the U.S. they should consider entering the U.S. as soon as possible.  Although several government agencies have issued preliminary guidance, the full implementation of this Proclamation remains uncertain and litigation is anticipated. We recommend avoiding situations that could place you unnecessarily at risk of becoming a test case.  

Upcoming Filings

Employers and H-1B holders should expect continued uncertainty in the near term. We recommend proceeding only with essential filings while deferring discretionary or strategic H-1B filings until further clarity is available.

We understand that employers, H-1B holders, and their families are understandably unsettled and seeking immediate guidance.  At this stage, however, significant uncertainty remains and additional clarification from the government is expected. Until reliable direction emerges, it is premature to issue detailed, case-specific recommendations. We will continue to monitor developments closely and provide updated guidance as soon as possible.

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Updated 9/21/2025

The U.S. Citizenship and Immigration Services (USCIS), which is the federal agency that processes and decides applications and petitions for immigration benefits in the U.S., has entered the fray and released its own memo on X and on its website regarding the Proclamation. The USCIS memo is consistent with CBP's and offers further reassurance that the Proclamation "only applies prospectively to petitions that have not yet been filed."

We are monitoring these developments in real time and will provide updates as DHS, DOS, and other agencies issue further guidance.

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Updated 9/20/2025

We have received an important update on yesterday's Proclamation that helps resolve some of the ambiguities in the White House announcement.

U.S. Customs & Border Protection (CBP), the agency responsible for managing entry at U.S. ports of entry, today posted on X a redacted image showing an internal memorandum related to the 9/19/2025 Presidential Proclamation entitled Restriction on Entry of Certain Nonimmigrant Workers [H-1B]. 

The CBP memo confirms that the Proclamation "only applies prospectively to petitions that have not yet been filed." In other words, it does not restrict entry for beneficiaries of H-1B petitions that were already approved or filed before 12:01 a.m. ET on September 21, 2025. 

Specifically, the memorandum states that the Proclamation does not impact:

• “aliens who are the beneficiaries of currently approved petitions,”

• “any petitions filed prior to 12:01 a.m. ET on September 21, 2025,” or

• “aliens in possession of validly issued H-1B nonimmigrant visas.”

In practical terms, this means that employees abroad with an approved or pending H-1B petition filed before September 21, or those who already hold a valid H-1B visa, should not be barred from entering the United States under this Proclamation.

We will continue to monitor the situation and provide updates as additional details around the implementation of this Proclamation are released.

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09/19/2025 [Initial Post]

On September 19, 2025, 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.