What’s Happening
On Friday, September 19th, the Trump Administration signed a Proclamation, Restriction On Entry Of Certain Nonimmigrant Workers (“H-1B Proclamation”), instituting a new “Travel Ban” on H-1B visa holders where their petitioning employer has not paid a new $100,000 fee for certain H-1B petitions filed after September 21, 2025. The initial wording of the H-1B Proclamation was extremely vague and imprecise and suggested that the new fee would apply to all H-1B visa holders outside the U.S. on the effective date, which caused extreme chaos and panic, with many H-1B workers rushing to get back to the U.S. before the Saturday evening deadline.
Following this initial chaos, separate clarifying guidance was issued by the White House, Customs and Border Protection (“CBP”), U.S. Citizenship and Immigration Services (“USCIS”), and the Department of State (“DoS”). Despite these additional clarifications, there continues to be conflicting information due to confusing wording across these individual resources which makes it difficult to ascertain the full scope of the new rule. Below we include:
An analysis of what information is confirmed at this time and what remains unclear
Responses to Frequently Asked Questions
Some practical guidance for H-1B employers and what to expect next
An overview of the official government guidance provided regarding the H-1B Proclamation to-date
Note that the best way to receive up-to-date information is to subscribe to receive our Client Alerts.
D&S Analysis
Confusion remains regarding the scope of the H-1B Proclamation due to a combination of inconsistent statements across various government authorities (for example, Commerce Secretary, Howard Lutnick state the fee would be an “annual fee” and Press Secretary, Karoline Leavitt, confirmed the exact opposite) as well as a lack of precision in the wording of updated guidance (failing to distinguish between an H-1B visa, an H-1B petition, or define what is meant by “new” petitions, etc.).
What we Know:
Despite this inconsistency and confusion, the following can be confirmed at this time:
Not Retroactive - Applies only to Petitions Filed After 9/21 - The Proclamation’s visa issuance and entry restrictions do not apply to H-1B beneficiaries whose petitions were filed prior to the September 21st effective date (includes both approved and pending petitions). These individuals can continue to travel as normal.
H-1B visa stamps will continue to be issued to H-1B beneficiaries whose H-1B petitions were filed prior to the September 21st effective date without proof of the $100,000 fee payment
National Interest Exemptions will be available to individuals, companies, and industries, though eligibility guidelines have not yet been released.
The fee is a one-time fee on “new H-1B Petition” - Despite contradictory statements from the Commerce Secretary and Press Secretary, USCIS FAQs published on September 21 confirm that it is a one-time fee applicable only to “new” H-1B petitions.
What we Don’t Know:
Given inconsistencies across the various official government resources, the following remains unclear at this time:
What constitutes a “new” petition? - The guidance indicates that the $100,000 applies to “new” petitions and not “renewals”. However, it is unclear whether it would apply to H-1B Change of Employer petitions based on the wording of the currently available guidance and whether they are distinguishing between H-1B visa stamp renewals and H-1B visa petition extensions of stay.
Are petitions for beneficiaries that are physically present in the U.S. exempt from the fee? - The authority the President is citing for the H-1B Proclamation applies only to his ability to “suspend the entry” of certain noncitizens and the Proclamation explicitly states that it applies to petitions filed on behalf of beneficiaries “who are currently outside the U.S.” on or after the effective date. Based on this, it is possible that impacted H-1B workers (those with petitions filed after 9/21) who remain in the U.S. could remain exempt from the $100,000 fee. However, this has not been confirmed, and the USCIS H-1B FAQs do not support this interpretation, suggesting instead that the fee applies to all petitions filed after the effective date, regardless of the beneficiary’s location.
What are the criteria and procedures for requesting a National Interest Exception (“NIE”)? - DHS and DoS have not provided any guidance on the criteria, application process, and what agency/agencies will adjudicate these requests as well as the processing times for such requests. Further, it is not clear whether factors like non-profit status, being a small employer or a start-up, are going to be factors considered when adjudicating an NIE.
Mechanics of new fee payment? - No guidance has been provided regarding payment remittance procedures. Based on the wording in some of the guidance it appears this fee will be paid separately from the standard USCIS filing fees submitted along with the petition, but this is not yet confirmed.
Will Form Revisions be required for the I-129? - It is unclear whether new forms or supplemental documentation will be required for impacted petitions that could delay petitioners ability to file petitions subject to the new fee.
FAQs
Please find below responses to FAQs D&S has been receiving regarding the H-1B Proclamation, based on the confirmed information available to-date:
Does the Petition apply to H-1B1s?
No. The proclamation specifically cites only the H-1B statutory provision ( INA § 101(a)(15)(H)(i)(b)), not the H-1B1 provision ( INA § 101(a)(15)(H)(i)(b1)), so the current understanding is that its scope should be limited to H-1B visas. That said, there is a risk of confusion at ports of entry, as CBP officers sometimes conflate the H-1B and H-1B1 categories so H-1B1 beneficiaries may want to travel with additional documentation confirming the fee does not apply to their visa category.
How are H-4 Dependent Beneficiaries Impacted?
H-4 dependent beneficiaries are not directly subject to the fee but if the principal beneficiary is subject to the fee it is likely that their H-4 application or H-4 admission will be restricted along with the principal H-1B beneficiary.
I Have a Valid H-1B Visa Stamp, Can I Travel?
Yes. While travel is never entirely without risk, the various agencies have all confirmed that the Proclamation does not apply to current H-1B visa holders and that these individuals can continue to enter and reenter the U.S. as normal.
I Have an Approved H-1B Petition but My Visa Stamp is Expired, Can I Travel?
Yes. While travel is never entirely without risk and other recent changes may result in longer wait times for consular appointments, H-1B visa stamps will continue to be issued to H-1B beneficiaries whose H-1B petitions were filed prior to the September 21st effective date.
Practical Guidance and What to Expect Next
At this point, based on the lack of clarity, D&S recommends that H-1B employers:
Hold off on any H-1B filings that could be subject to the fee, where possible. This includes any petitions for “Change of Employer”.
However, employers may wish to have these filings prepared and ready to be filed (including obtaining a certified Labor Condition Application (“LCA”) in order to be able to file during any period of injunction and/or to avoid potential issues caused by a potential government shutdown at the end of this month.
Explore visa alternatives. Where appropriate, employers should also explore alternative visa classifications in these cases (e.g., O-1, TN, E-3, L-1, H-1B1), which are not currently affected by this proclamation.
Subscribe to receive our Client Alerts and encourage any H-1B employees to subscribe as well.
Legal challenges to the H-1B Proclamation are expected to begin as early as this week.
Available Official Guidance
September 19, 2025 - White House publishes the H-1B Proclamation on its website confirming that it will restrict the entry of anyone seeking to enter or reenter the U.S. in H-1B status without payment of a new $100,000 fee. Initially, the wording of the Proclamation was interpreted to apply to any H-1B visa holders currently outside the U.S. as of the effective date of the Proclamation.
September 19, 2025 - During the Press Conference which accompanied the signing of the H-1B Proclamation, Commerce Secretary Howard Lutnick indicated to reporters that the $100,000 fee would apply annually.
September 19, 2025 - The White House published a Fact Sheet stating that:
Entry of impacted H-1B visa holders will be restricted absent evidence of payment of the $100,000 fee.
Approval of H-1B petitions filed after the effective date for “aliens that are currently outside the United States” will be restricted if not accompanied by the $100,000.
Employers are required to retain documentation of the remittance of the $100,000 payment which will be verified both during the petition process and when impacted H-1B workers are seeking entry to the U.S.
September 20, 2025 - White House Press Secretary Karoline Leavitt posts on X that:
The $100,000 is a “one-time” fee and “NOT an annual fee”
Current H-1B visa holders who are outside the U.S. on the effective date of the H-1B Proclamation are not subject to the $100,000 fee to reenter the U.S.
Current H-1B visa holders can continue to travel in and out of the U.S. as they would have prior to the Proclamation.
The fee applies only to new visas, not renewals, and not current visa holders.
September 20, 2025 - USCIS publishes Policy Memorandum confirming that:
The H-1B Proclamation does not apply to
Foreign nationals who are the beneficiaries of pending H-1B petitions filed prior to September 21st,
Beneficiaries of approved H-1B petitions filed prior to September 21st, or
Individual who are currently in possession of a valid H-1B visa stamp.
The Proclamation does not impact the ability of current H-1B visa holders to travel in and out of the U.S.
September 20, 2025 - CBP releases Internal Guidance confirming that:
The H-1B Proclamation does not impact beneficiaries of petitions approved or pending as of the September 21, 2025 effective date.
The H-1B Proclamation does not apply to foreign nationals in possession of a valid H-1B visa stamp.
USCIS and DoS have been instructed to begin charging the new fee for employers “submitting petitions on behalf of aliens outside the United States for new H-1B petitions only.”
The Proclamation does not impact the ability of current H-1B visa holders to travel in and out of the U.S.
September 21, 2025 - USCIS posts an H-1B FAQ page on its website confirming:
Payment of the $100,000 fee must accompany any new H-1B visa petitions submitted after the effective date, specifying that this includes the 2026 lottery, and “any other H-1B petitions” submitted after the September 21st effective date.
The fee is a one-time fee for submission of a new H-1B petition and does not apply to any H-1B renewals.
The new fee does not apply to any previously issued H-1B visas, or any petitions submitted prior to the September 21 effective date.
The Proclamation does not prevent any holder of a current H-1B visa from traveling in and out of the United States.
September 21, 2025 - The Department of State updated its website to indicate that:
The Proclamation restricts the issuance of H-1B visas where the $100,000 fee has not been paid.
The Proclamation’s restrictions on visa issuance and entry to the U.S. apply only to H-1B petitions filed with USCIS after the Proclamation’s September 21st effective date.
No current H-1B visas have been revoked pursuant to the Proclamation.
D&S is continuing to monitor this developing situation and will provide updates as more information becomes available.