DHS Clarifies Scope of New $100,000 H-1B Fee; Announces Plans for Additional Changes to H-1B Program

After the chaos that ensued from President Trump’s Proclamation on Friday night announcing a new $100,000 fee that would impact certain H-1B petitions, U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP) have both released new memos that provide some clarity on when this new fee would apply.  The USCIS memo can be found here, and the CBP memo can be found here (it does not appear that CBP has yet posted this on its website, but has posted it through its verified X account).  USCIS has also published an FAQ about the Proclamation.  Though we are still left with some questions, these sources do provide comfort that the Proclamation is not intended to impact as many H-1B employers and workers as initially feared. 

According to these memos and the FAQ, the fee will apply only to “new” H-1B petitions filed after the Proclamation took effect at 12:01am on September 21, 2025, and does not impact any H-1B worker who is the beneficiary of a currently approved petition or a petition filed prior to the effective date of the Proclamation, and also does not impact any individual in possession of a valid H-1B visa.  Per USCIS’ FAQ, it “does not change any payments or fees required to be submitted in connection with any H-1B renewals.”  Importantly, USCIS and CBP have both confirmed that “[t]he Proclamation does not impact the ability of any current visa holder to travel to or from the United States.”

While these updates provide a great deal of comfort, there are still some lingering uncertainties. For example, White House Press Secretary Karoline Leavitt posted a statement on X that the new fee “will first apply in the next upcoming lottery cycle,” but USCIS’ FAQ states that the Proclamation applies to all new petitions filed after 12:01am on September 21, 2025, including future petitions in the FY2027 H-1B cap lottery.  Overall, there is still a general unease about how this Proclamation will be applied.  Litigation on this matter will also be ongoing and may change the long-term impact of the Proclamation.

For now, employers and H-1B workers should find relief in the memos posted by USCIS and CBP as well as USCIS’ new FAQ.  Many attorneys across the country have also been confirming the successful entry of H-1B workers from abroad without issue.  That being said, H-1B workers that are risk-averse may want to consider continuing to refrain from discretionary international travel until the dust fully settles, out of an abundance of caution.  It is generally recommended that any H-1B worker who does travel outside of the country and seek re-entry in H-1B status have copies of these memos and the FAQ with them to present to CBP in case they encounter any issues.

Lastly, please note that the Proclamation and USCIS’ FAQ on this matter confirm the government’s intention to make additional reforms to the H-1B program in the future, including revising and raising prevailing wage levels and prioritizing the selection of higher-paid foreign national workers in the H-1B cap lottery.  USCIS’ FAQ states that “[a]dditional reforms are also under consideration and will be announced in the coming months.”

We will continue to post news of any relevant updates on this Proclamation or future announced changes to the H-1B program.