PLEASE REVIEW OUR UPDATED ARTICLE, DATED OCTOBER 20, 2025, FOR THE MOST CURRENT INFORMATION ON THIS ISSUE.
This article provides an UPDATE on our advisory from September 20, 2025, regarding the Trump Presidential Proclamation requiring payment of a $100,000 fee for individuals entering the United States.
The White House, U.S. Citizenship & Immigration Services’ (USCIS) Memorandum and FAQ page, as well as Customs and Border Protection (CBP), have provided some clarifications, but key guidance from the U.S. State Department is still pending and many questions remain unanswered.
Further updates will be shared as they become available. In sum, there are still many questions that remain unanswered. We will continue to provide updates as they become available.
Key clarifications provided by the administration over the weekend:
- The rule applies prospectively to I-129 Petitions seeking H-1B approval that are filed after September 21, 2025. This means:
- Beneficiaries of approved H-1B Petitions or pending H-1B Petitions that were filed prior to September 21, 2025, and are currently in the United States (and will remain in the United States) are not subject to the $100,000 fee.
- Current H-1B visa holders who are currently abroad, can return to the United States H-1B status to resume/continue their H-1B employment and are not subject to the $100,000 fee.
- H-1B extension petitions filed after September 21, 2025, by employers on behalf of H-1B employees currently in the United States are not subject to the $100,000 fee.
- Future H-1B petitions filed under the H-1B Cap for Fiscal Year (FY) 2027 (H-1B Cap Lottery in March 2026) on behalf of foreign nationals who are outside the United States are subject to the $100,000 fee.
Here is what we still do not know:
- H-1B Cap Exempt Petitioners
- We do not know whether Cap Exempt H-1B Petitions filed after September 21, 2025, for foreign nationals currently in the United States are subject to the $100,000 fee.
- H-1B Cap Cases for FY27 seeking changes of status for people inside the USA
- We do not know whether H-1B Petitions filed under the H-1B Cap for FY27 for foreign nationals who are inside the USA (i.e., foreign nationals on F-1 OPT seeking change of status to a cap-subject H-1B) are subject to the $100,000 fee.
- Foreign Nationals currently outside the USA awaiting adjudication of pending H-1B Petition prior to applying for H-1B Visa
- We do not know whether foreign nationals currently outside the United States who are beneficiaries of H-1B petitions filed before September 21, 2025, but not yet adjudicated, will need to have the $100,000 fee paid before they apply for their H-1B visa stamp at a U.S. Embassy abroad. We are hopeful that forthcoming guidance from the Department of State will help resolve this question.
- Visa Exempt Canadians
- We do not know whether this rule applies to H-1B petitions filed on behalf of Canadian nationals, who are visa exempt.
- H-1B1
- We do not know whether this rule applies to H-1B1 visa applications filed by Chilean and Singaporean at the embassies in Santiago and Singapore.
Recommendations for H-1B Employees:
- H-1B status holders currently in the United States SHOULD NOT TRAVEL INTERNATIONALLY.
- H-1B visa holders currently outside the United States with valid H-1B visa stamps should return to the United States as soon as possible
- Foreign nationals who are the beneficiaries of approved H-1B Petitions (petitions filed and approved prior to September 21, 2025) and who are scheduled for H-1B visa interviews to obtain their visa stamps after September 21st, should plan to keep those H-1B visa appointments, (without the need for the $100,000 fee) unless and until advised otherwise.
Recommendations for H-1B Employers:
- Advise all H-1B employees in the United States that they should cancel/postpone any international travel plans for the time being.
- Continue to monitor updates regarding this proclamation, as we obtain further answers from the Trump Administration about whether the rule applies to H-1B Petitions filed after September 21, 2025, on behalf of people who are currently inside the USA, i.e.:
- H-1B Transfer Petitions (transferring an employee currently in USA in H-1B Status from another employer);
- H-1B Changes of Status for Cap Exempt Employers (H-1B Cap exempt employers filing petitions requesting changes of status from F-1, J-1, B-2, etc. to H-1B)
- H-1B Cap Subject Petitions filed under FY27 Cap for foreign nationals currently inside the United States
Litigation challenging the Presidential Proclamation is imminent. It is very possible that the rule will be temporarily stayed prior to the H-1B Cap season for FY2027. We will continue to provide updates as they are available.
For more questions on the H-1B Worker Program, differences between a nonimmigrant status and a nonimmigrant visa, or other immigration matters, please contact Kolko & Casey, P.C.