On the evening of Friday, 09/19/2025, the White House issued a presidential proclamation that rocked the H-1B world. The proclamation restricts the entry of H-1B workers into the United States unless their petitions are, in the proclamation’s words, “accompanied or supplemented by a payment of $100,000.” The restriction takes effect at 12:01 a.m. EST on Sunday, 09/21/2025, and lasts 12 months. Over the weekend, employers scrambled to locate their overseas H-1B employees and requested them to return to the U.S. immediately.
Different Interpretations by USCIS and CBP
The abruptness of the announcement resulted in different agency interpretations of the new policy. Initially, the proclamation requests the DHS to "restrict decisions on petitions not accompanied by a $100,000 payment for H-1B specialty occupation workers.... who are currently outside the United States."
The CBP's 09/20/2025 guidance provides that the proclamation only applies to new petitions filed after 09/21/2025, and it does not impact current visa holders’ ability to travel. As the border gatekeeper, CBP's focus is on new petitions for individuals outside the U.S.
According to a USCIS policy memo and FAQs, the $100,000 must accompany any new H-1B petition filed after 09/21/2025, including the upcoming 2026 H-1B cap lottery. It does not apply to petitions filed before that time, extensions, or current H-1B travelers.
A potential conflict could arise under these two interpretations. For example, an employer files a petition to extend an overseas employee's H-1B status after 09/21/2025. Under the USCIS interpretation, this extension should not be subject to the new fee. However, when this employee requests for admission at the border, CBP may ask to see proof of payment of the $100,000 fee because it is a new petition. On the other hand, if the employee has a valid H-1B visa issued before 09/21/2025, the new fee may not apply even under the CBP interpretation.
The State Department also issued guidance on this issue. It confirms that the "Proclamation's restrictions on visa issuance and entry apply only to aliens seeking visa issuance or entry into the United States based on H-1B petitions filed" after 09/21/2025. Hence, according to the DOS, the new fee must be paid for all new petitions before issuance of an H-1B visa, regardless of whether it for new employment or extension.
The details of the new policy are still yet to be ironed out by the different agencies. For instance, as for now, the government has not publicly finalized mechanics as to how and when to pay this $100,000 new fee.
Legal Challenges
This new $100,000 H-1B fee could be challenged in court because of it is an implementation of an application fee without going through the normal rule-making process. One may also argue that it is arbitrary and capricious to set such a high fee for an immigration petition.
An equal protection claim could be made as the new policy treats domestic and overseas H-1B workers differently. However, the Equal Protection Clause only applies to “persons” who are physically present in the U.S., not overseas persons. What about unfairness to small and medium-sized employers who cannot afford to pay the new fee? Further, if a court deems the “payment” functionally is to raise revenue beyond cost-recovery, it can be argued that only Congress can impose such charges and that revenue measures must originate in the House.
However, the Government will likely invoke the President's authority under INA Section 212(f) to suspend or restrict entry of "any class" of noncitizens if entry would be detrimental to the U.S. The Supreme Court has read this power very broadly. Further, the new policy has a 12-month limit and also allows national-interest exceptions. Hence, the outcome of any legal challenges is uncertain.
Conclusion
The new $100,000 H-1B fee has caused tremendous confusion and uncertainties. The details of implementation are still sketchy. Employers and practitioners are mostly taking a wait-and-see approach. A universal piece of advice for H-1B workers is to avoid international travel for now unless absolutely necessary.
