By: Patricia Gannon, Esq. and Marcela Bermudez, Esq.
The White House has issued a proclamation under INA 212(f), imposing a $100,000 annual admission fee on H-1B workers. The sudden announcement has caused widespread confusion due to the lack of detailed guidance. However, new information is emerging daily. To help navigate this evolving situation, we’ve compiled key updates and insights that may assist during this uncertain time.
The presidential proclamation restricts entry to foreign nationals seeking to enter the U.S. on or after September 21 unless their petition is accompanied or supplemented by a payment of $100,000. There is no mechanism for payment, but details should be forthcoming.
The White House also issued a White House fact sheet. This fact sheet can be read to indicate that it is not clear whether entry restrictions apply to people with an H-1B petition or visa approved before the proclamation’s effective date. The proclamation does indicate it applies to all H-1B’s seeking entry to the U.S.
Recently, the U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP) issued much-needed guidance. This guidance limits the presidential proclamation. It states that foreign nationals who currently have a pending or approved H-1B petition or a valid H-1B visa should not be subject to the newly announced H-1B entry restrictions. They should be able to enter the U.S. from abroad on or after September 21, 2025, provided that they possess a valid, approved H-1B petition and H-1B visa, unless they are visa-exempt, like Canadians.
CBP issued a related memorandum that is exactly like the USCIS language and states that CBP will “continue to process current H-1B visa holders.” The Department of State has not yet issued its own guidance to consular officers, but we assume this will happen shortly.
This is helpful for those who have to travel or, as initially thought they could not enter until September 21, 2025, without paying an entry fine of $100,000. The agency guidance makes clear that foreign nationals should only be required for H-1B specialty occupation petitions filed after the proclamation takes effect on September 21 for foreign nationals who are currently outside the U.S.
Of course, there is much that needs clarification. For those who have to file, obtain an approval, and travel and re-enter the U.S. after September 21, 2025, the proclamation provides a national interest exemption to enter the USA. The Department of Homeland Security (DHS) has the authority to grant an exception to any individual foreign national, all foreign nationals working for a specific employer, or all foreign nationals working in a specific industry if it is in the U.S. national interest and does not pose a threat to U.S. national security or welfare. So a national interest exemption is allowed. It is not clear what this means or how this will be applied. It is not clear how the fee will be applied.
While restricting the H-1B, the proclamation directs the Secretary of State to issue guidance to ensure that those with an approved H-1B petition for employment before October 1, 2026, do not misuse the B-1/B-2 visa. Therefore, if you have an H-1B and want to enter with your B-1/B-2 this will be highly scrutinized. This ban is on H-1B classifications, not others such as H-2 or H-1B1.
Finally, the proclamation instructs the DHS to begin rulemaking that would prioritize the highest-paid and most qualified foreign nationals. A DHS proposal to implement a weighted system for allocating the H-1B quota has already cleared Office of Management and Budget review.
As this has just been released, we expect more clarifications in the coming days, litigation and other analyses of this process.
