United States: Updated FAQs on the Impact of the New H-1B Restrictions

What does the new Presidential Proclamation do? 

By its terms, the presidential proclamation bans an H-1B specialty occupation employee from entering the United States unless their employer has paid a $100,000 fee for the sponsored employee. The proclamation took effect at 12:01 am EDT on Sunday, September 21 and will remain in effect for one year, unless extended. The proclamation permits discretionary exceptions for individuals, companies, and industries where the Department of Homeland Security deems the H-1B employment to be in the national interest.

How will the proclamation be implemented by federal agencies?

The text of the proclamation is broad and does not make distinctions between categories of potential H-1B petitions and individuals, but the White House and various federal agencies have issued subsequent guidance to try to clarify its scope. The most comprehensive guidance comes from U.S. Citizenship and Immigration Services (USCIS), which posted an internal guidance memo and Frequently Asked Questions on its website over the weekend. According to the USCIS guidance, the proclamation:

• Does not apply to the holder of any previously issued H-1B visa (if visa is required);
• Does not apply to any H-1B petitions submitted to USCIS prior to 12:01 a.m. eastern daylight time on September 21; and
• Does not require that the $100,000 fee be submitted in connection with any “H-1B renewals.” As discussed below, it is not yet clear what will be considered a renewal for purposes of the fee, so while it is clear that H-1B extensions of stay with the same employer are not subject, there are open questions with respect to other types of H-1B filings.

How does the proclamation affect H-1B extensions, changes of employer and changes of status? What is the impact if a foreign national in another nonimmigrant status departs the United States to obtain an H-1B visa? 

As addressed above, USCIS has clarified that H-1B extensions of stay are not subject to the new restrictions. However, there are still several critical questions that remain unknown. We are awaiting federal government clarification and guidance on the following issues:

• Whether an H-1B change of employer or H-1B amendment filed on or after September 21 is considered a “new” petition and therefore, subject to the $100,000 fee;
• Whether those inside the United States in a non-H-1B nonimmigrant status will become subject to the proclamation if they are sponsored for an H-1B petition on or after September 21 through a change of status request; and
• Whether those inside the United States in a non-H-1B nonimmigrant status will trigger the proclamation restrictions if an H-1B petition is filed for them on or after September 21 and they subsequently depart from the United States to obtain an H-1B visa.

We expect some clarification in the coming days. However, it is important to note that there is currently no mechanism for federal agencies to collect a $100,000 fee from employers filing an H-1B petition.

Will the new proclamation be challenged in court?

Legal challenges to the ban are expected to be filed. Plaintiffs are likely to seek an emergency stay against implementation of the presidential proclamation. However, the timing of a stay or injunction cannot be predicted with certainty. 

Does the proclamation apply to cap-exempt H-1B petitions and entries?

By the precise terms of the presidential proclamation and subsequent guidance, there is no exception for cap-exempt H-1B petitions, employment, or entries. It is not known whether cap-exempt organizations may qualify for a national interest exception from the proclamation, based solely on their cap-exempt status.

Does the proclamation apply to Canadian nationals who are visa exempt?

Yes, the proclamation applies to Canadian nationals in the same way it would apply to individuals of other nationalities, despite the fact that Canadian nationals are not required to obtain H-1B visas in their passport.

Does the proclamation apply to the Chile/Singapore H-1B1 program?

The proclamation addresses only H-1B workers entering to perform a specialty occupation under Immigration and Nationality Act Section 101(a)(15)(H)(i)(b). It does not apply to Chilean and Singaporean nationals entering under the separate provision for the H-1B1 program. Therefore, these individuals should not see any changes to their immigration processes, visa applications, or travel. However, as the restrictions begin to be implemented, H-1B1s should be prepared for delays and possible confusion at ports of entry. If they are questioned about their status, they should explain that their immigration category is different from the H-1B specialty occupation category and is not subject to the new proclamation.

When will the Trump Administration announce fee payment procedures for the $100,000 fee in the Proclamation? 

It is not clear when the Administration will announce fee payment procedures for the new fee. Thus far, the Administration has not provided instructions on paying the fee or on seeking an exemption from the fee under the national interest exception. There is currently no mechanism to pay this fee with the government.

Which types of H-1B petitions are subject to the $100,000 fee?

Based on government guidance available thus far, we know for certain that H-1B extensions with the same employer are not subject to the $100,000 fee. Beyond that, we do not have clarity on which H-1B petitions may be subject including H-1B change of employer and amendment petitions.

Does the $100,000 fee apply to H-1Bs who are in the United States on or after September 21?

The plain language of the proclamation says that the fee applies only to petitions filed for beneficiaries who are “currently” outside the United States. However, there has been no clarification as to what timeframe “currently” applies to – it could mean on September 21, the effective date of the proclamation, or it could mean at the time an H-1B petition is being filed on behalf of a foreign national. Because of this lack of clarity, it is not clear if presence in the United States protects a foreign national (and any H-1B petition on their behalf) from being subject to the proclamation. Further, assuming the foreign national is protected while in the United States, it is not clear whether the fee would become required if they depart the United States and subsequently seeks readmission in H-1B status.

To the extent that the new FAQ purports to broaden the scope of the proclamation to petitions filed for beneficiaries in the United States – including beneficiaries of H-1B change of status petitions – it appears to be ultra vires. We also await further clarification from the agency about the impact of travel on liability for the $100,000 fee for petitions filed today and later.

Should employers wait to file further H-1B petitions until the government provides more guidance?

Employers should work with their Fragomen team to identify time-sensitive extensions of stay and other H-1B filings and should submit their petitions timely as usual. We do not advise delaying time-sensitive H-1B petition filings.

With respect to non-urgent filings, organizations should work with their Fragomen team to discuss timing and review any future government guidance to determine whether a petition could be subject to the new restrictions.

What are the national interest exceptions to the new restrictions? What is the process for seeking a national interest exception?

The proclamation provides that the Department of Homeland Security may grant exemptions in its discretion to any individual foreign national, all foreign nationals working for a company, or all foreign nationals working in a specific industry, if DHS determines that the employment of such foreign national(s) is in the U.S. national interest and does not pose a threat to U.S. security or welfare.

It is not yet clear how the government will determine whether employment of an H-1B worker is in the national interest. According to media reports, the White House has indicated that H-1B petitions for doctors might be exempt from the new restrictions, though we await official guidance for confirmation. In the permanent residence context, national interest has been found when an individual is working in critical infrastructure, technology, healthcare and similar endeavors that have substantial merit and national importance, but it is not yet known whether the government will apply this standard in regard to the new H-1B restrictions. We anticipate that the Administration will provide information on the criteria for an exemption from the H-1B restrictions in the coming days.

Thus far, the government has not provided details on the process for seeking a national interest exception from the new H-1B restrictions. We anticipate further information in the coming days.

Can foreign nationals who are outside the United States with valid H-1B visas travel to the United States?

Yes, pursuant to guidance issued by the U.S. government over the weekend, if a foreign national has been previously issued an H-1B visa, they are not subject to the proclamation and can use their visa to travel to the United States.

What about foreign nationals who are outside the United States and have upcoming visa appointments?

Foreign nationals with an H-1B petition filed before September 21, 2025. Those with a petition filed before September 21 should plan to attend their visa appointment as scheduled. These individuals are outside of the scope of the proclamation and are not subject to the new H-1B restrictions.

Foreign nationals with an H-1B petition filed on or after September 21, 2025. USCIS has stated that beneficiaries of an H-1B extension of stay with the same employer are unaffected by the new restrictions; therefore, individuals whose employer filed their extension on or after September 21 should be able to depart the United States to obtain a new H-1B visa and return to continue their H-1B employment without impact from the proclamation. For beneficiaries of other types of H-1B filings, such as changes of employers and amendments, please consult with Fragomen counsel before attending any visa appointments or making travel plans in connection with obtaining an H-1B visa.