H-1B Update: Executive Order Targets New H-1B Visa Holders With $100,000 Fee

At a Glance

• The Trump administration issued an executive order that requires employers to pay $100,000 for each visa H-1B petition.
• After confusion about the applicability of the order to existing H-1B workers, the government issued clarifying comments that indicated the order did not apply to existing H-1B workers and that those individuals currently located abroad would be permitted to reenter the U.S. without paying the $100,000 fee.

On September 19, 2025, President Donald Trump issued a proclamation restricting the entry of anyone seeking to enter the United States in H-1B status without payment of a new $100,000 fee. The proclamation, titled “Restriction on Entry of Certain Nonimmigrant Workers” became effective as of 12:01 a.m. EDT September 21, 2025, and is set to expire after one year (but may be extended).

New Fee and Restrictions for H-1B Visa Applicants

The proclamation cites to INA 212(f), which governs admission and entry to the U.S. and targets entry of H-1B workers into the U.S. The proclamation further states that U.S. Citizenship & Immigration Services (USCIS) shall not adjudicate H-1B petitions unless they are accompanied by proof of payment of the $100,000 fee for H-1B workers. The proclamation directs the Secretary of Labor to initiate rulemaking to revise the prevailing wage levels and to prioritize the admission of highly skilled and highly paid nonimmigrants. It also directs the Department of Homeland Security to prioritize highly skilled, highly paid beneficiaries in the H-1B lottery over those at lower wage levels.

The proclamation further directs that, within 30 days of the next H-1B lottery — expected to be conducted in March 2026 — the Secretary of State, the Attorney General, the Secretary of Labor and the Secretary of Homeland Security shall jointly submit a recommendation to the president determining whether renewing or extending the reentry restriction is in the best interest of the U.S. The proclamation also requires the Secretary of State to issue guidance preventing the misuse of B-1 visas by beneficiaries of approved H-1B petitions with start dates prior to October 1, 2026, likely to prevent them from entering the U.S. and filing a change of status to avoid the fee.

Exceptions to the proclamation may exist for an individual, a petitioning employer or an industry, if the Department of Homeland Security determines that it is in the national interest of the U.S. and does not pose a threat to the security or welfare of the U.S. Currently there is no guidance on how to request a national interest exemption.

Additional Clarification

The White House tweeted on Saturday, September 20, 2025, that the $100,000 fee will “first apply in the next upcoming lottery cycle” and “[t]his applies only to new visas, not renewals, and not current visa holders.” In an “H-1B FAQ” article published on September 21, 2025, the White House further stated that the proclamation does not apply to any “previously issued H-1B visas, or any petitions submitted prior to 12:01 a.m. eastern daylight time on September 21, 2025” and that the proclamation “does not change any payments or fees required to be submitted in connection with any H-1B renewals.” The text further states that the fee is a one-time fee on submission of “a new H-1B petition.” No details have emerged yet regarding to whom and under what authority the new $100,000 fee should be paid.

On September 20, 2025, USCIS published a memorandum on the proclamation, stating that “the proclamation only applies prospectively to petitions that have not yet been filed” suggesting that current H-1B visa holders are not impacted by the proclamation.

Information released by U.S. Customs & Border Protection (CBP) late on September 20, 2025, indicates that individuals with approved and valid H-1B petitions and valid H-1B visa stamps (if required) can return to the U.S. on or after the September 21 deadline under current processes and guidelines for admission into the U.S.

On September 21, 2025, the U.S. Department of State (DOS) stated that the proclamation will only apply to visa applications or entry into the U.S. based on H-1B petitions filed with USCIS after the effective date.

Even with these points of clarification, many questions remain about how this order will be implemented and who, specifically, will be impacted. For now, employers are advised to: 1) be aware of their employees currently employed in H-1B status; 2) to communicate EO-related updates to that employee population; and 3) stay up to date with these H-1B-related proclamations to create strategies for the 2026 H-1B cap season.

Since the proclamation was announced on September 19, 2025, some H-1B workers with I-129 petitions and H-1B visa stamps issued prior to the effective date have been admitted to the U.S. without being required to pay the $100,000 fee. Litigation is anticipated. This situation is fluid and will continue to evolve over the coming weeks.

For More Information

Faegre Drinker will update this advisory as more information becomes available. For more relevant immigration-related information through 2025, register for Faegre Drinker’s immigration and global mobility team’s Business Immigration Webinar Series: Compliance & Hiring Strategies for 2025.