The $100,000 Fee on H-1B Entries: What Employers Need to Know

The President, on Friday, September 19, 2025, issued a proclamation restricting the entry of anyone seeking to enter or re-enter the U.S. in H-1B status without payment of a new $100,000 fee. The proclamation, titled “Restriction on Entry of Certain Nonimmigrant Workers” was set to be effective at 12:01 a.m. EDT Sunday, September 21, 2025, and is set to expire after one year.

This proclamation set off a frenzy of foreign national workers, employers, attorneys and other stakeholders scrambling to understand what the immediate impacts would be on petitions that were filed and pending at US Consulates worldwide; petitions filed and pending adjudication at USCIS, and foreign national employees on H-1B who may have left the U.S. and would be unable to return within a 24 hour period.

Clarifications Issued Immediately

After a lot of anguish for employees, employers and global employee management personnel, the White House, USCIS and the Department of State issued clarifications throughout the day on Saturday.

Specifically, per guidance released on Sunday by the Department of State and U.S. Citizenship and Immigration Services, the administration clarified the proclamation to state that the proclamation:

1. Is applicable to any NEW H-1B visa petitions that will be submitted after the effective date of the proclamation;
2. Does not require payments for applications already filed that may be pending final adjudication in USCIS offices or Consulates across the U.S.;
3. Employers filing petitions that request an extension of stay, change of employer, or amendment to current terms of employment should not be required to pay the new fee. The ongoing employment of H-1B holders should not be impacted.
4. Does not prevent any holder of a current H-1B from leaving and re-entering the United States.

What We Now Know:

The above clarifications still leave much unanswered, such as:

1. What happens to cap-exempt petitions? As of now, there has been no clarification on whether Non-profit organizations; Hospitals; Universities and other eligible as “Cap Exempt” institutions will be exempt from this fee. Hospitals in rural areas will be especially impacted as they have a large number of Foreign Medical Graduates employed in medically underserved areas on H-1B Visas.
2. What happens to those applicants seeking to “revive prior unused H-1B as a “New Employment” petitions to be filed after the effective date of the proclamation?
   • Example, it is, as yet, unclear if an individual on TN or F1 or any other visa status who has unused H-1B time or time remaining on a prior H-1Bs would be able to “revive” that petition via employment with a new employer seeking to recapture unused time, would be subject to the payment of the $100,000 fee.

National Interest Exemption

The proclamation allows case-by-case National Interest Exceptions (NIEs), but some view NIEs as discretionary, documentary and administratively burdensome and not a scalable substitute for broad policy relief.

The NIE’s were widely used during the prior Trump Administration in response to the various travel bans and “Muslim Bans”. Based on past practices with other executive orders/proclamations, employees in certain industries; especially healthcare workers, in areas with shortages, are considered likely candidates for an NIE or a blanket exemption, although the U.S. Department of Homeland Security (DHS) has not officially issued any formal guidance regarding NIE exemptions for healthcare workers.

There is no set definition of who qualifies for an NIE, so employers are advised to speak with your immigration attorney to see if a valid claim can be made for an NIE exemption for applications from that entity.

Legal Background: APA Compliance and Executive Action in Immigration

We expect a flurry of lawsuits challenging the legality of this action to commence soon.

Under the Administrative Procedure Act (APA), federal agencies must generally follow formal rulemaking procedures—including providing notice and an opportunity for public comment—before adopting regulations that carry the force of law. Specifically, 5 U.S.C. § 553 requires notice-and-comment rulemaking for any “legislative rule”, unless a narrow exception applies (such as for “good cause”).

However, this procedural requirement applies to federal agencies, not the President. Presidential proclamations or executive orders are not subject to the APA’s rulemaking provisions. That said, once an agency (e.g., USCIS or the State Department) implements or enforces a presidential directive through formal guidance, rulemaking, or adjudicative action, that agency action may itself be subject to APA review.

In short, while the President’s issuance of a proclamation—such as one imposing a $100,000 fee on certain H‑1B visa petitions—may fall outside the APA, the implementing actions taken by agencies to enforce such a directive may still be subject to APA procedural requirements and judicial review.

5 Immediate Actions HR/Personnel Management Must Take

Employers should take the following steps to ensure compliance and minimize disruption related to the recent H-1B proclamation establishingnew salary thresholds:

1. Review Compensation for H-1B Employees
   • Audit current salaries of H-1B employees to ensure they meet or exceed the new thresholds that Department of Labor has been ordered to implement. This new threshold has not yet been released, but is likely to be implemented for the upcoming lottery cap subject petitions, and any petitions requiring renewal. On September 19, 2025, President Trump issued a proclamation directing the Department of Labor (DOL) to revise and raise the prevailing wage levels for the H-1B visa program. This directive is part of a broader set of changes targeting the H-1B program, which includes new entry restrictions and a $100,000 fee for certain new petitions. 
   • Assess whether compensation includes bonuses, commissions, or non-cash benefits that may count toward the total.
   • Adjust offers or renegotiate compensation packages as necessary.
2. Evaluate Impact on Sponsorships
   • Identify existing or prospective H-1B employees who may fall below the threshold.
   • Reassess eligibility for new petitions, transfers, and extensions.
   • Consider alternative visa options for affected candidates.
3. Update Compliance and Internal Procedures
   • Ensure wage information on Labor Condition Applications (LCAs) and Form I-129 petitions reflect accurate salary data.
   • Implement documentation practices to demonstrate compliance in case of audits or inquiries.
   • Provide training to HR, legal, and recruiting teams on new requirements.
4. Communicate with Affected Employees
   • Inform H-1B workers of potential impacts on their visa status and employment.
   • Offer access to legal counsel for personalized guidance where needed.
   • Reinforce support for compliant employees and clarify next steps.
5. Monitor Policy Developments and Legal Challenges
   • Stay informed about possible court rulings, exceptions, or reversals.
   • Coordinate with immigration counsel to adjust strategy as needed.
   • Prepare contingency plans in response to rapidly evolving immigration policies.

Conclusion

The $100,000 H-1B proclamation introduces significant implications for employers relying on foreign talent. Proactive compliance, strategic workforce planning, and clear communication with affected employees will be critical to minimizing business disruption and maintaining immigration program integrity. Employers are strongly encouraged to consult with immigration counsel to assess their specific exposure and to ensure all necessary adjustments are made in a timely and legally sound manner.

For further guidance or support, please contact our immigration team.

Kripa Upadhyay: 206.225.1167 kupadhyay@buchalter.com

Andrea Bartoloni: 503.226.8622 abartoloni@buchalter.com

This communication is not intended to create or constitute, nor does it create or constitute, an attorney-client or any other legal relationship. No statement in this communication constitutes legal advice nor should any communication herein be construed, relied upon, or interpreted as legal advice. This communication is for general information purposes only regarding recent legal developments of interest, and is not a substitute for legal counsel on any subject matter. No reader should act or refrain from acting on the basis of any information included herein without seeking appropriate legal advice on the particular facts and circumstances affecting that reader. For more information, visit www.buchalter.com.