UPDATED FAQ for Presidential Proclamation “Restriction on Entry of Certain Nonimmigrant Workers”

This FAQ previously posted in late September has been revised based on new information issued by USCIS on October 20, 2025.

The revised information is in red and any information that is no longer applicable has been struck through.

When does this proclamation take effect?

The proclamation took effect on 12:01 a.m. EST on September 21, 2025.  

Does the proclamation have an expiration date?

The proclamation is set to expire on September 21, 2026.

What does the proclamation do?

It imposes a new $100,000 fee that the H-1B sponsor must pay for each new (sometimes referred to as “initial”) “Consular Processing” H-1B petition it files.

Who is impacted by this proclamation?

This only impacts new “Consular Processing” H-1B petitions filed after 12:01 a.m. EST on September 21, 2025. 

What does “new” petition mean?

A new H-1B petition is a petition filed for a beneficiary who is not currently in H-1B status and thus needs to change status to or be issued a new visa for H-1B status.

What does “Consular Processing” mean?

A Consular Processing H-1B petition is a petition filed for a beneficiary who is outside the United States and does not currently have a valid H-1B I-797 approval notice. The beneficiary will need to apply for an H-1B visa stamp at a U.S. Consulate or Embassy outside the United States. “Consular Processing” can also apply to a beneficiary who is currently in the United States – in a status other than H-1B – who will need to leave the United States, apply for an H-1B visa stamp at a U.S. Consulate or Embassy, and re-enter the United States in H-1B status.

What does “filed” mean?

A petition is filed when United States Citizenship and Immigration Services (“USCIS”) has received it. The safest way to consider a petition “filed” is with an I-797 receipt notice that reflects a “received date” prior to September 21, 2025.

Does this apply to H-4 dependent visas?

This does not currently apply to H-4 holders. However, H-4 status is dependent on the principal nonimmigrant’s valid H-1B status. Thus, it is important to ensure proper maintenance of your H-1B status so the H-4 is also properly maintained. Further, if the Principal’s H-1B is denied then the H-4 application should be denied as well.

I am currently in the United States on a valid H-1B visa. Should I travel internationally?

You will be permitted to re-enter the U.S. after international travel without paying the $100K fee.

I am currently in the United States in another valid status and my H-1B petition for change of status is pending. Should I travel internationally? Does my petitioner need to submit the new fee?

We do not recommend leaving the U.S. while an H-1B change of status petition is pending with USCIS even without the added concern of the new fee. If you leave the U.S. while the change of status petition is in process, the petition may be denied or you may be required to obtain a new visa stamp to re-enter the U.S. This visa application process takes time and could delay your return to the U.S.

If the H-1B petition was filed before September 21, 2025 and you must travel internationally while the H-1B change of status petition is in progress, you will not be subject to the $100,000 fee. If the H-1B petition was filed on or after September 21, 2025 and you leave the United States, you will be subject to the $100,000 fee with rare exception. See below for an explanation of that exception. 

What if the petition was received after the effective date?

If the H-1B petition is received after the effective date and requires Consular Processing, the petition will be subject to the new fee. However, some jobs may be exempt from the new fee, even if the H-1B petition was received by USCIS after the effective date. The proclamation provides that the Department of Homeland Security may waive the fee for beneficiaries if their use of H-1B workers is deemed to serve the national interest. Educating school-aged students is a strong U.S. interest. Given the teacher shortage in the United States, it is arguable that a teacher being sponsored for H-1B should be exempt from the $100,000 fee because it is in the country's best interest to allow that teacher to fill a classroom that would otherwise be vacant.

Updated guidance from USCIS indicates these situations are “extraordinarily rare,” and that the following conditions must be true: 1) the H-1B worker must not displace an American worker available to fill the role; 2) the foreign worker must “not pose a threat to the security or welfare of the United States”; and 3) that “requiring the petitioner employer to make the payment on the alien’s behalf would significantly undermine the interest of the United States.”

USCIS may still issue a Request for Evidence (“RFE”) requesting the new fee for a teacher position. With the petitioner’s approval, I can respond to the RFE with the above argument. The outcome is not guaranteed. We do not know how USCIS will respond to this argument, especially given how new this fee requirement is and without further government guidance.

I am currently outside the U.S. My H-1B petition has been approved, but I do not yet have an H-1B visa stamp. Am I subject to the fee?

The fee does not impact H-1B visa applicants with an H-1B I-797 approval notice, the underlying petition for which was filed before September 21, 2025. If the petition was filed on or after September 21, 2025 and this is a new H-1B, you may be subject to the fee. If the Petitioner chooses, my firm can draft a letter for the H-1B visa applicant teacher to take to their interview explaining they will serve the U.S. national interest and are thus exempt from the fee.

I am currently out of the U.S. and my H-1B application is pending with USCIS. Am I subject to the new fee?

You should not need to pay the new fee if the petition was filed before September 21, 2025. You may be subject if the petition was filed on or after September 21, 2025.

I am currently abroad on a valid H-1B visa. Should I return immediately?

You do not need to return to the U.S. immediately. New USCIS guidance clarifies that any H-1B employee who currently holds a valid H-1B visa stamp or H-1B I-797 approval notice may travel in and out of the U.S. without paying the additional fee.  

I am in the U.S. and have a valid H-1B I-797 approval notice. I will be traveling outside the U.S. in the future and will need a new H-1B visa stamp. Am I subject to the fee?

You should not need to pay the new fee. The best practice is always to notify your sponsoring employer of your intended travel. Your sponsor can ensure you have the proper documentation to take with you and consult with an attorney on any policy changes that may impact your return. 

Are there any exceptions to the proclamation?

There is an exception to the fee requirement if “the Secretary of Homeland Security determines, in the Secretary’s discretion, that the hiring of such aliens to be employed as H-1B specialty occupation workers is in the national interest and does not pose a threat to the security or welfare of the United States.”  Educating school-aged students is a strong U.S. interest. Given the teacher shortage in the United States, it is arguable that a teacher being sponsored for H-1B should be exempt from the $100,000 fee because it is in the country's best interest to allow that teacher to fill a classroom that would otherwise be vacant.

Updated guidance from USCIS indicates these situations are “extraordinarily rare,” and that the following conditions must be true: 1) the H-1B worker must not displace an American worker available to fill the role; 2) the foreign worker must “not pose a threat to the security or welfare of the United States; , and 3) that “requiring the petitioner employer to make the payment on the alien’s behalf would significantly undermine the interest of the United States.” It appears petitioning employers may confirm their sponsored H-1B employee is exempt by emailing a new Department of Homeland Security email address with all supporting evidence before filing an H-1B petition. At this time, there is no guidance, data, or anecdotal evidence to indicate the response rate or efficacy of this new email process.

Are non-teacher positions exempt from the fee?

It is not clear whether non-teacher H-1B positions would qualify for a national interest exemption. There is as yet neither guidance on what positions are “in the national interest” nor test cases that can give us answers. However, like the teacher position, I believe that it is possible to make an argument that other “hard to fill” and shortage area positions would qualify for the national interest exception. It appears petitioning employers may confirm their sponsored H-1B employee is exempt by emailing a new Department of Homeland Security email address with all supporting evidence before filing an H-1B petition. At this time, there is no guidance, data, or anecdotal evidence to indicate the response rate or efficacy of this new email process.

Does this impact PERMs currently in process with the Department of Labor?

No. The proclamation only applies to H-1B petitions. “PERM” is a completely separate application/process.

Does this impact J-1 status holders?

No. The J-1 exchange visitor program is separate from the H-1B program.

Bottom Line

Do not panic. I, along with attorneys across the United States, am researching, analyzing, and strategizing to allow you to either begin or continue working in H-1B status. New USCIS guidance clarifies the $100,000 fee only applies to new Consular Processing H-1B petitions. The guidance also introduced a new DHS email address to submit exception requests before filing an H-1B petition for an individual worker. I will promptly send updates as there are developments.