As detailed in our September 25th Blog Post, President Trump issued the Restriction on Entry of Certain Nonimmigrant Workers proclamation (the “proclamation”) on September 19, 2025, which created more questions than answers. On October 20, 2025, U.S. Citizenship and Immigration Services (“USCIS”) issued new guidance answering many of the questions that remained following President Trump’s Restriction on Entry of Certain Nonimmigrant Workers proclamation (the “proclamation”) issued on September 19, 2025. This update significantly narrows the scope of the original proclamation and provides clarity on how and when to pay the new $100,000 fee.
The initial proclamation, which is set to expire after one year, became effective at 12:01 a.m. Sunday, September 21, 2025 and required a $100,000 payment to accompany any new H-1B visa petitions. This proclamation was followed by various contradictory statements from the White House, Customs and Border Protection (“CBP”), U.S. Citizenship and Immigration Services (“USCIS”), and the Department of State (“DoS”) leading to confusion regarding the full scoop of the new rule. While there are still some uncertainties regarding how the new rule will be applied and who qualifies for the exceptions, USCIS’s October 20th, 2025 update clarifies many of the initial ambiguities and provides guidance for employers on filing H-1B petitions moving forward.
Who is subject to the $100,000 fee:
USCIS has clarified that after September 21, 2025, the following H-1B petitions are subject to a $100,000 fee:
- H-1B petitions for beneficiaries who are outside the United States, do not have a valid H-1B visa, and require consular processing.
- H-1B petitions for beneficiaries who are in the United States, but request consular processing, port of entry notification, or pre-flight inspection.
- H-1B petitions requesting a change of status; amendment; or extension of stay, but that USCIS determines to be ineligible for a change of status, amendment, or extension of stay.
This significantly narrows the scope of the original proclamation by applying the $100,000 to almost exclusively cases that are being consular processed, as opposed to requesting a change of status; amendment; or extension of stay.
Who is NOT subject to the $100,000 fee:
USCIS has clarified that the following H-1B petitions are NOT subject to a $100,000 fee:
- H-1B petition requesting a change of status; amendment; or extension of stay for a Beneficiary inside the United States.
- Beneficiaries of approved amendment, change of status, or extension petitions who subsequently depart the United States and apply for a visa based on the approved petition or seek to reenter the United States on a current H-1B visa.
Notably, this clarifies that the proclamation will not apply to foreign nationals who are inside the United States and are selected in future H-1B CAP seasons. This means that the students in F-1 status who are selected in the H-1B lottery will not be subject to the $100,000 fee. The USCIS update also clarifies that petitions for change of employers will not be subject to the new fee.
Exceptions granted by the Secretary of Homeland Security:
USCIS states that exceptions for petitions that are subject to the $100,000 fee will only be granted in the extraordinarily rare circumstance where the Secretary has determined that:
- A particular worker’s presence in the United States as an H-1B worker is in the national interest,
- That no American worker is available to fill the role,
- That the H-1B worker does not pose a threat to the security or welfare of the United States, AND
- That requiring the petitioning employer to make the payment on the H-1B worker’s would significantly undermine the interests of the United States.
The agency does not provide any guidance clarifying the scope of the national interest or methods of proving that no American worker is available for the role.
Summary:
This update from USCIS significantly narrows the scope from the initial proposal under President Trump’s Restriction on Entry of Certain Nonimmigrant Workers proclamation from September. While the $100,000 fee still applies to nearly all petitions requesting consular processing for beneficiaries outside of the United States, it is a sigh of relief for many employers hiring and extending the employment of nonimmigrant workers inside the United States, and for F-1 students looking to be selected in future H-1B CAP lotteries. This proclamation is also currently subject to multiple challenges in court including a complaint filed by the U.S. Chamber of Commerce on October 16, 2025.
MHS is continuing to monitor this developing situation and will provide updates as more information becomes available.