President Trump’s surprise Friday announcement that his administration would place a $100,000 fee on H-1B visas over the weekend spurred panic for both companies and visa holders as they scrambled to decipher exactly what the change meant to them.
Amid the chaos, with major employers such Microsoft and Amazon, sending urgent communications to their H-1B holders to not leave, or return to the United States, the White House clarified some of the nuances of the announcement in memos issued by U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP). Summarized, the memos clarify the fees only apply to new petitions and existing visa holders would not be affected.
What is Clear About the H-1B Visa Fee
The memos conflict somewhat with President Trump’s original order, so confusion still abounds. Here’s what we know right now:
- The fee does not affect or apply to any H-1B petitions that have already been filed with United States Citizenship and Immigration Services prior to 12:01 a.m. on September 21.
- This fee appears to apply to H-1B petitions that have not yet been filed with USCIS, and that are filed on behalf of beneficiaries currently outside of the United States.
- Beneficiaries of petitions filed prior to 12:01am on Sept. 21 should still be able to travel and obtain H-1B visas if necessary.
What is Unclear About the H-1B Visa Fee
Here’s what is still unclear:
- If and how this applies to H-1B petitions filed starting today for beneficiaries in the United States (seeking a change of status, extension of status, change of employer, etc.)
- The text of the proclamation itself clearly states that it restricts “entry to the U.S.” and it directs the Department of Homeland Security to restrict decisions on H-1B petitions for beneficiaries “who are currently outside the United States.”
- However, an FAQ document published yesterday by the White House suggests that the $100,000 payment is required “to accompany any new H-1B visa petitions submitted after 12:01 a.m. eastern daylight time on September 21, 2025. This includes the 2026 lottery, and any other H-1B petitions submitted after 12:01 a.m. eastern daylight time on September 21, 2025.” This does not distinguish between petitions for beneficiaries outside or inside of the United States.
- The text of the proclamation itself clearly states that it restricts “entry to the U.S.” and it directs the Department of Homeland Security to restrict decisions on H-1B petitions for beneficiaries “who are currently outside the United States.”
- How requests for the “national interest exceptions” mentioned in the proclamation will be adjudicated/evaluated. The proclamation states: “The restriction imposed pursuant to subsections (a) and (b) of this section shall not apply to any individual alien, all aliens working for a company, or all aliens working in an industry, 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.” It is possible we may get further clarification on industry-wide exceptions to this, but there’s been no further guidance on this yet.
- The impact of lawsuits/litigation. Several are being prepared and would likely lead to a Temporary Restraining Order that could pause the implementation of some, or all, of the proclamation.
With so much at stake and unclarified, employers and visa holders should be cautious about international travel. Our Immigration Practice Group will closely follow developments and report out relevant news as quickly as possible.
If you have questions or concerns, please contact attorney Brendan Venter at (518) 701-2773 and bventer@harrisbeachmurtha.com, another member of the Harris Beach Murtha Immigration Practice Group, or the Harris Beach Murtha attorney with whom you most frequently work.
This alert does not purport to be a substitute for advice of counsel on specific matters.
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