H-1B Payment Requirement:
On Friday, the Trump Administration released a proclamation impacting the ability of H-1B workers to enter the U.S. The proclamation stated that beginning on September 21, 2025 at 12:01am Eastern, H-1B workers would not be able to enter the U.S. unless the petition was accompanied with or supplemented by a payment of $100,000.
Since the time the proclamation was published, USCIS, CBP, and DOS have issued guidance clarifying its scope and significantly limiting its impact to H-1B holders. While there is still ongoing uncertainty, our current guidance is below.
For all individuals with an H-1B petition that was filed prior to September 21, 2025: The proclamation should not apply. USCIS, CBP, and DOS guidance states the proclamation only applies prospectively to petitions filed after September 21, 2025. Therefore, if you are the beneficiary of an H-1B petition filed before September 21st, you should be able to continue entering the U.S. and should be able to continue to apply for new H-1B visas, if needed. If you are a Canadian who does not require a visa, you should be able to continue to leave and re-enter as you normally would under the current approved petition.
For individuals in the U.S. who will require an extension after September 21, 2025: This proclamation should not apply to you. A separate H-1B FAQ states that the proclamation “does not change any payments or fees required to be submitted in connection with any H-1B renewals.” Additionally, under the language of the proclamation, it should only impact people outside of the U.S. Therefore, if you are in the U.S. and are seeking an extension, amendment, change of employer, or some other action, we anticipate the fee will not apply.
Who does the fee apply to? After reading the guidance, we believe it will impact H-1B cases for next year’s lottery, but it should only impact those who are outside the U.S. Additionally, we believe it will impact cap-exempt petitions for beneficiaries outside the U.S.
–H-1B Lottery Cases in 2026 for people outside the U.S.: The H-1B FAQ states that petitions filed in the next H-1B lottery will be subject to the fee. However, because it should only apply to people outside the U.S., it should not impact individuals in F-1 or another status seeking a change of status if selected in the H-1B lottery next year.
–H-1B cap-exempt petitions for beneficiaries currently outside the U.S.: Under the proclamation and guidance, the payment appears to apply to cap-exempt petitions filed after September 21st for a beneficiary outside the U.S. This would impact universities, nonprofits affiliated with universities, nonprofit research organizations, and governmental research organizations.
If the rule would apply to you, and you enter in another status, such as B-1/B-2 then change status, USCIS might consider this a misuse of that visa. The proclamation considered that scenario, stating that “the Secretary of State shall also issue guidance, as necessary and to the extent permitted by law, to prevent misuse of B visas by alien beneficiaries of approved H-1B petitions that have an employment start date beginning prior to October 1, 2026.”
Other Possible Applications Needing Guidance: It is possible the proclamation could apply to other scenarios, as there are still gaps in the guidance. Here are some additional scenarios about which we are uncertain:
–Current H-1B workers who will require a new petition after September 21st, but who are outside of the U.S. at the time of filing. There are other situations where someone may be the beneficiary of an H-1B petition filed after September 21st who is outside of the U.S. This could include, for example, Canadian or Mexican commuters or people outside the U.S. for business or personal reasons. Although the guidance states that the fee will not be required in connection with any H-1B renewals, the guidance does not define what constitutes an “H-1B renewal.” We will evaluate this on a case-by-case basis as those situations arise.
–H-1B workers who will require a new petition after September 21st, but who later need to travel internationally. It is common that H-1B beneficiaries need to travel for business or personal reasons after an H-1B petition is filed. The guidance is not clear on its definition of what constitutes an “H-1B renewal.” For example, if a change of employer petition or an amendment does not constitute an “H-1B renewal,” then a subsequent trip could trigger the payment. We will continue to monitor guidance on this specific question. In the meantime, if you are the beneficiary of a change of employer petition, amendment, or any other petition to be filed after September 21, 2025 and you seek to travel, please contact us before making any international travel plans.
If the fee applies to you, there may be an option for a national interest exception. However, USCIS has not issued any guidance on how to apply for a national interest exception.
What’s Next? Although the proclamation is already in effect, we do not have any guidance on how to pay the fee. We anticipate there will be a lawsuit challenging the proclamation as early as this week. In the meantime, we have provided updated Q&As regarding the proclamation based on what we now know. Below are answers to common client questions we have received so far.
Q. I am currently out of the U.S. and have a valid H-1B visa. Can I re-enter the U.S.?
A. DOS guidance clarified that the proclamation does not apply to foreign nationals with valid H-1B visas. Therefore, you should be able to continue to travel as planned, subject to other immigration rules.
Q. I am the beneficiary of an approved H-1B petition filed before September 21st but I am currently out of the U.S. and do not have a valid H-1B visa yet. Can I still apply for an H-1B visa?
A. The guidance specifies that the proclamation does not apply to any H-1B petition filed before September 21, 2025. Therefore, you should be able to apply for an H-1B visa based on that petition.
Q. I am currently in the U.S. working in H-1B status based on a petition filed before September 21, 2025. Does this rule impact me?
A. Guidance clarified that the proclamation does not apply to any petition filed before September 21, 2025. Therefore, if you are in the U.S. working in H-1B status, you are not impacted by the rule.
Q. I am going through the change of employer (porting) process, and the H-1B petition will be filed after September 21, 2025. How does the proclamation impact me?
A. Assuming you are in the U.S., the rule should not impact you. We are uncertain whether a change of employer petition filed after September 21, 2025 would require a payment when applying for a visa in the future. Therefore, if you are a beneficiary of an H-1B petition filed on or after September 21, 2025, you should contact us before making any international travel plans.
Q. I am a commuter who travels to the U.S. daily for work. What should I do?
If you reside in Canada or Mexico and commute to the U.S. daily for work, the rule should not impact you as long as you are working under an H-1B petition that was filed prior to September 21, 2025. CBP guidance clarified that the proclamation does not impact individuals who are beneficiaries of currently approved petitions filed before September 21, 2025.
If you are in need of a new H-1B petition, we will discuss whether the proclamation will impact you.
Q. Are there any exceptions to this rule?
A. The proclamation includes an exception if the Secretary of Homeland Security determines that the H-1B worker is in the national interest and does not pose a threat to the security or welfare of the United States. However, there is no additional guidance or procedure for how to apply for an exception. We will continue to monitor this standard.
Q. I am not in H-1B status. Does this apply to me?
This rule only applies to H-1B specialty occupation workers. The proclamation only cites H-1B provisions, so if you are on another nonimmigrant visa, such as O-1, L-1, H-1B1, E-3, E-2, TN, F-1, or another status, this should not apply to you.
The proclamation is currently set to remain in effect for 12 months unless extended, but litigation or subsequent guidance may alter its application. We will continue to monitor this evolving topic and provide additional guidance.