Recent H-1B Update
Good News for Employers: USCIS Clarifies $100,000 H-1B Fee will NOT impact New H-1B Change of Employer, Change of Status or Extension Petitions
USCIS has issued a key update clarifying the scope of the $100,000 H-1B petition fee introduced under the recent Presidential Proclamation. The update brings positive news for employers.
According to USCIS, the $100,000 fee does not apply to:
H-1B change of employer, extension, change of status, or amendment petitions filed for individuals already in the U.S. in a valid nonimmigrant status. However, if USCIS determines that the individual is not eligible for the requested change/extension/amendment of status (e.g, they are deemed to have been out of status at the time the petition was filed or leave the U.S. while a change of status request is pending), the $100K fee will apply.
H-1B cap petitions requesting a change of status filed for individuals who are in the U.S. in a valid nonimmigrant status (e.g., F-1, L-1, TN, etc.). The $100k fee will apply to petitions requesting consular notification or petitions that cannot be approved as a change of status (e.g, they are deemed to have been out of status at the time the petition was filed or leave the U.S. while a change of status request is pending).
In addition, USCIS has now confirmed that the Proclamation does not impact:
International travel and reentry for H-1B employees with valid I-797 Approval Notices with an I-94 annotation amending/extending/changing their status.
This means employers can continue to file H-1B petitions in the following scenarios without triggering the new fee or travel restriction:
H-1B cap petitions requesting a change of status for U.S.-based candidates (e.g., F-1 OPT/CPT, TN, L-1/L-2, E-3 holders) who are maintaining their current nonimmigrant status.
H-1B change of employer petitions with request for extension or amendment of status for H-1B workers already in the U.S. and maintaining their H-1B status with a different employer.
H-1B change of status petitions for candidates in the U.S. who currently hold and are maintaining another nonimmigrant status.
Extending or amending existing H-1B employment.
Why This Is Good News
Strategic hiring: U.S.-based candidates holding and maintaining a valid nonimmigrant status remain a viable, cost-effective option for securing talent. Employers can continue their practices of recruiting recent graduates holding F-1 OPT status or another nonimmigrant status and then registering them in the H-1B lottery. Employers can continue to recruit candidates who currently hold H-1B status for another employer. It will also be possible to file H-1Bs for individuals who previously held H-1B status for less than six years (or who are eligible for an H-1B beyond the 6th year) but are now in another status.
Cost control: We now have confirmation that the $100,000 fee applies only in very limited circumstances—primarily for individuals requiring consular processing including new hires outside the U.S. and individuals who are not maintaining a legal status in the U.S.
Better odds for future H-1B lottery selections: By removing previous incentives for foreign consulting companies to submit a large number of H-1B lottery registrations for people outside the U.S., U.S. employers should have better odds of “winning” the H-1B lottery for their employees.
What You Should Do Now
Update your HR/Recruiting Teams to let them know that H-1B sponsorship continues to be a viable option in the vast majority of cases.
Let your H-1B workforce know that they can travel internationally and apply for new H-1B visa stamps without worrying about triggering the $100K fee so long as they have an I-797 Approval Notice with a valid I-94 record.
For change of employer (port) cases, confirm at the outset that the candidate is maintaining their H-1B status by continuing to work for the employer listed on their H-1B approval notice.
Avoid consular processing for candidates and existing employees holding another valid visa status (e.g., TN, L-1, L-2, E-3) and confirm at the outset that they are maintaining their status.
File H-1B extension/change of status/change of employer petitions as early as possible to ensure that the H-1B employee remains eligible for the requested change/extension of status.
We’ll continue to monitor developments and provide updates as policy evolves. If you have questions about how this impacts your workforce planning, we’re here to help.
H-1B Update
I. Proclamation Restricting the Entry of H-1Bs
On September 19, 2025, President Trump signed a Proclamation restricting the entry of anyone seeking to enter the U.S. after 12:01 a.m. EDT on September 21, 2025, in H-1B status without payment of a new $100,000 fee.
The Proclamation was very broadly written, such that at the time the Proclamation was issued, the parameters were unclear. Subsequently, U.S. Citizenship and Immigration Services and U.S. Customs and Border Protection issued guidance limiting the scope of the Proclamation, but the guidance was not precisely written so the exact scope of the Proclamation remained unclear. USCIS also issued FAQs, which include links to the guidance.
We previously were able to confirm, based on the guidance, the following:
The Proclamation does not apply to H-1B petitions that were approved prior to the effective date of September 21, 2025.
The Proclamation does not apply to petitions filed before September 21, 2025, even if they remained pending on that date.
The Proclamation does not apply to “renewals” – but the meaning of this term was unclear.
We can now confirm that we are seeing the following interpretations from USCIS and CBP:
The Proclamation does not apply to H-1B petitions filed after September 21, 2025 for individuals who hold H-1B status or previously held H-1B status prior to September 21, 2025. This includes petitions to extend H-1B status, amend H-1B status, and change of employer petitions. It also includes change of status petitions for individuals who previously held H-1B status and are seeking the remainder of their H-1B time.
The Proclamation does not affect international travel for an individual who holds an H-1B approval based on a petition filed prior to September 21, 2025.
The Proclamation does not apply to individuals seeking a new H-1B visa stamp based on a petition filed before September 21, 2025, even if the petition remained pending on that date.
While these clarifications are welcome news, there continue to be questions concerning the effect of the Proclamation.
It remains unclear whether individuals who obtain H-1B status based on a petition filed after September 21, 2025 will become subject to the $100,000 fee if they subsequently travel abroad and seek a visa or otherwise seek re-entry to the U.S.
It also remains unclear whether individuals who have not previously held H-1B status and seek a change of status to H-1B to work for a cap exempt employer will be subject to the fee. We have seen reports of approvals for such cases. However, since none of the guidance addresses an exemption for cap exempt employers, we are not certain this trend will continue. We are cautiously optimistic that there will be a blanket exemption for cap exempt employers.
While the Administration has stated that the fee will apply to the 2026 (FY2027) H-1B lottery, it is not clear whether that includes petitions filed for individuals already in the U.S. and requesting a change of status.
It continues to appear likely that the fee will apply to new H-1B petitions filed after September 21, 2025 for people are outside the U.S., even if they previously held H-1B status.
It remains unclear how the fee will be collected, when it will be collected, and how and when evidence of payment of the fee will be required.
The Proclamation provides that DHS may issue individual, company, and/or industry-wide exemptions to the new fee based on the national interests of the U.S. As of now, the criteria and process for seeking an exemption have not been made public. It also remains unclear whether there will be a blanket exemption issued to cap-exempt employers.
II. The Government Shutdown
The Department of Labor is not accepting or processing Labor Condition Applications (LCAs), Prevailing Wage Requests, or PERM Labor Certification applications during the shutdown. Because an LCA is required for an H-1B, H-1B1, or E-3 petition, USCIS has confirmed that it may excuse a late filing if the petition is otherwise approvable and the petitioner submits evidence that the inability to obtain the LCA is the primary reason for the failure to timely file the petition.
Obtaining approval of a Naturalization Application is likely to get more difficult.
USCIS has announced multiple changes to the naturalization process, including:
▪️ A revamped Civics Test for applications filed on or after 10/20/25 that demands deeper knowledge of U.S. history and government.
▪️ Potential Neighborhood investigations to verify applicants’ eligibility.
▪️ Expanded scrutiny of good moral character—now potentially requiring proof of positive contributions to society, not just absence of wrongdoing.
▪️ Stricter stances on disqualifying applicants based on false claims to US citizenship, unlawfully voting, or unlawfully registering to vote.
These changes reflect a broader shift toward enforcement and exclusion. If you're planning to naturalize, be prepared for a more rigorous, invasive, and unforgiving process.
Recent Developments Affecting Nonimmigrant Workers
There have been several major developments affecting foreign national employees on work visas. We are monitoring the situation closely and will keep you posted.
Presidential Proclamation Banning Entry of Certain H-1B Nonimmigrants if $100,000 is Not Paid
On September 19, 2025, President Trump signed a Proclamation restricting the entry of anyone seeking to enter the US in H-1B status without payment of a new $100,000 fee. This Proclamation has generated a great deal of chaos and confusion, and there are still many unanswered questions. Here is what we know so far:
The Proclamation does not apply to H-1B petitions that have already been approved.
The Proclamation does not apply to petitions filed before September 21, 2025.
The Proclamation should not apply to H-1B “renewals” – but it is unclear whether this means extensions of H-1B petitions for those who already hold H-1B status, renewals of H-1B visas for individuals who already hold H-1B visas, or potentially a broader meaning.
If an employee has an approved H-1B petition, their ability to travel internationally should not be impacted. However because this is a very fluid situation, we are recommending that H-1B employees refrain from non-essential international travel until it becomes clear that international travel is not being impacted for H-1B visa holders.
It is unclear whether and how the Proclamation will apply to H-1B change of employer petitions or H-1B change of status petitions.
It is unclear whether cap-exempt employers will be subject to the ban.
It is unclear how the payment of the new fee can be made.
It appears that the fee likely will apply to new H-1B petitions filed for people who are outside the US.
The Proclamation provides that DHS may issue individual, company, and/or industry-wide exemptions to the new fee based on the national interests of the US.
We expect that there will be litigation challenging the legality of the Proclamation, so it is possible that the Proclamation could be overturned
We understand this Proclamation may raise questions and concerns about your H-1B employees’ immigration situations. We will continue to share new guidance as it becomes available. In the meantime here are some key points to share with your employees:
Consider avoiding non-essential international travel
Refer to the USCIS FAQ page for more details and updates. This page also includes links to the policy memoranda issued by USCIS, CBP and the State Department.
Proposed Rule: Weighted Selection Process for Cap-Subject H-1B Petitions
On September 24, 2025, DHS published a proposed rule to revise the H-1B cap selection process by introducing a weighted system that prioritizes H-1B registrations based on wage levels. The Department of Labor’s prevailing wage data is broken down into four wage levels, with Level 1 wages applying to entry-level roles, and Level 4 wages applying to the most senior-level roles. H-1B lottery registrations would be ranked by wage levels based on the salary being offered to the prospective H-1B employee, with higher wage levels receiving greater chances of selection in the lottery. The rule is open for public comment before finalization. If adopted, it would apply to future H-1B cap seasons. The relevant wage data can be accessed on the Department of Labor’s website.
Nonimmigrant Visa Applicants Instructed to Apply for Visas in Home Country
The State Department has released a policy announcement that restricts the availability of nonimmigrant visa appointments for third-country national applicants. DOS announced that applicants should schedule their visa appointments in their country of nationality or residence, which is a departure from previous policy which allowed applicants to schedule an interview in any country. In addition, nationals of certain countries are required to apply at a designated embassy or consulate, unless their residence is elsewhere. This change in policy, combined with the State Department’s major scaling back of interview waivers for most visa applicants, will make it harder to secure visa appointments in a timely manner.
Applicants should also note the following:
Residence Requirement: Applicants must be able to demonstrate residence in the country where they are applying, if the place of application is based on their residency.
Fees: Applicants who schedule nonimmigrant interviews at a U.S. embassy or consulate outside of their country of nationality or residence might find that it will be more difficult to qualify for the visa. Fees paid for such applications will not be refunded and cannot be transferred.
Appointment Availability: Wait times for nonimmigrant interview appointments vary by location. Applicants applying outside their country of nationality or residence should expect to wait significantly longer for an appointment.
Existing Appointments: Existing nonimmigrant visa appointments will generally not be cancelled. The State Department has confirmed that this policy change does not prevent visa issuance to individuals who scheduled their interview prior to September 6, 2025.
Alien Registration Requirement for Noncitizens
Effective April 11, 2025, all noncitizens aged 14 or older who are in the United States for 30 days or longer will be required to register with the Department of Homeland Security (DHS). Noncitizens subject to the registration requirement who are 18 years or older must carry proof of registration at all times. Together with the registration and proof of registration requirements, the Department of Homeland Security reminds noncitizens of the requirement to notify the Department of Homeland Security of any change address within 10 days of moving. A change of address must be made for each subject family member.
Children subject to the registration requirement must register and appear for fingerprinting within 30 days of turning 14, even if they previously completed a qualifying registration activity prior to turning 14.
Noncitizens Already Registered or Exempt from Registration Requirement
Critically, many noncitizens present in the U.S. have already met this requirement by registering as part of their immigration processes, and this rule does not require them to do so again except for individuals who have subsequently turned 14. However, it does require all subject noncitizens to begin carrying proof of registration at all times.
Individuals who have already registered include:
U.S. lawful permanent residents
Individuals admitted to the U.S. who received an I-94 admission record, including most individuals on student and work visas, as well as their dependents
U.S. visa holders who have already been registered and fingerprinted through their application for a visa
Individuals granted an employment authorization document (even if since expired)
Individuals who have filed a Form I-485, Application to Register or Adjust Status to Permanent Residence, and have had biometrics taken
Individuals with Border Crossing (even if expired)
Individuals who entered as crewmen
Refugees
Most individuals who are or were in removal or deportation proceedings
Individuals granted parole under INA 212(d)(5) – humanitarian or significant public benefit parolees
Noncitizens exempt from the registration requirement include:
A visa holders
G visa holders
Those in the U.S. for less than 30 days
American Indians born in Canada who possess at least 50% blood of the American Indian race who are present in the US under the authority of 8 USC 1359
US permanent residents who are abroad when they turn 14. However, the individual must then apply for registration and provide a photograph within 30 days of return to the U.S.
Proof of Registration
Proof of registration must be carried by noncitizens (unless exempt) at all times and may include original physical documents (not photocopies or electronic copies/photos stored on your phone) of the following
Form I-94, Arrival-Departure Record, which can usually be retrieved at: https://i94.cbp.dhs.gov/home. Print this record and carry it with you
Form I-551, Permanent Resident Card
Form I-766, Employment Authorization Document (EAD)
Valid, unexpired nonimmigrant DHS admission or parole stamp in foreign passport
Proof of Registration issued upon submission of Form G-325R and completion of biometrics
Form I-95, Crewman’s Landing Permit
Form I-184, Alien Crewman Landing Permit and Identification Card
Form I-185, Nonresident Alien Canadian Border Crossing Card
Form I-186, Nonresident Alien Mexican Border Crossing Card
Form I-221, Order to Show Cause and Notice of Hearing
Form I-221S, Order to Show Cause, Notice of Hearing, and Warrant of Arrest of Aliens
Form I-862, Notice to Appear, for those noncitizens against whom removal proceedings are being instituted
Form I-863, Notice of Referral to Immigration Judge, for those noncitizens against whom removal proceedings are being instituted
Canadians typically receive an I-94 when entering the U.S. via air. Canadians entering at a land or sea border who intend to stay for 30 days or longer should pay $6 and request an I-94 record. If Canadians enter the U.S. and remain for 30 days or longer and were not issued an I-94 record upon entry, they must register using the process noted below.
Registration Process
Noncitizens present in the U.S. for more than 30 days who are not in possession of one of the above registration documents, and those turning 14, may complete the registration process by submitting a Form G-325R Biographic Information (Registration). This form can be completed and submitted online via a creation of a MyUSCIS account at https://my.uscis.gov/. Each noncitizen must have a unique account. Submission of Form G-325R will trigger scheduling a Biometrics Services Appointment at a USCIS Application Support Center. Currently this option has no associated fees. Once registration is complete, the individual will be able to download and print proof of registration.
The MyUSCIS account can also be used to report the required change of address to Department of Homeland Security.
Penalties for Failure to Register and Failure to Notify of Change of Address
Individuals who fail to register as required may be prosecuted with misdemeanor criminal offenses including:
Willful failure to register or to register one’s child under 14, punishable by a fine of up to $5,000 or up to six months imprisonment or both
Failure to carry proof of registration, punishable by a fine of up to $5,000 or up to 30 days imprisonment or both
The rule also points to a separate criminal offense for a person who registers using false statements, which is both a misdemeanor offense and a specific ground of deportability.
Failure to notify the government within 10 days of a change of address is punishable by a fine of up to $5000 or up to 30 days imprisonment or both.
Conclusion
If you have any questions or concerns about registration due to any potential grounds of inadmissibility or removal, please contact your CML Attorney. Likewise, please contact your CML attorney if you have any questions about the registration process, including whether you are required to register or have already met the registration requirement.
New DOS Guidance for Visa Interview Waivers
On February 18, 2025, the U.S. Department of State issued updated guidance regarding the categories of applicants that may be eligible for a waiver of the nonimmigrant visa interview (“Drop Box”) for certain categories of applicants applying for visa stamps at U.S. Consulates outside the United States.
The new guidance limits interview waiver applications to those applicants who previously held a visa in the same category that expired less than 12 months prior to the new application. Under prior guidance, individuals who had received a visa stamp that expired within the prior 48 months were potentially eligible for a waiver of the visa interview. In addition, the guidance removes the visa waiver option for individuals who have changed status to a new visa category, such as from F-1 to H-1B.
This change is effective immediately. Individuals who scheduled interview waiver/drop box appointments prior to the change who are no longer eligible for the interview waiver will likely be required to schedule new, in-person interview appointments. There could be delays in obtaining such appointments due to overall demand for visa stamping appointments, which is likely to increase significantly due to this change in policy.
In addition to these new guidelines, prior guidelines concerning eligibility for interview waivers continue to remain in effect. To apply for an interview waiver appointment, applicants must:
· Apply in their country of nationality or residence;
· Have never been refused a visa (unless such refusal was overcome or waived); and
· Have no apparent or potential ineligibility.
Applicants under age 14 and over 80 may continue to be eligible for interview waivers and Consular officers continue to have the discretion to require in-person interviews on a case-by-case basis.
I’ve had a Green Card for Years. Why Should I Apply for U.S. Citizenship?
Should I apply for U.S. citizenship?
The Department of Homeland Security estimates that there are over 2 million people in the U.S. who have green cards and are eligible to apply for U.S. citizenship. If you are one of these individuals, here are some reasons to consider taking this step now:
Who is Eligible: You are potentially eligible to apply for U.S. citizenship if you have had a green card for five years (or if you are married to and living with a U.S. citizen and have had a green card for three years). The application can be filed up to 90 days in advance of meeting the 3/5 year requirement.
8 Reasons to Apply for U.S. Citizenship Now
Stability and Security
Acquiring US citizenship is the best way to ensure that you can live and work in the United States without fear of deportation.
Voting Rights
U.S. citizens have the right to vote in local, state, and national elections. Naturalized citizens can also run for many public office positions. When you vote, you can make a difference in the democratic process and influence decisions that affect your community and future generations.
Travel Freedom
With a U.S. passport, you can travel to over 100 countries visa-free or with visa-on-arrival access. If you plan to reside outside the U.S. for an extended period of time, you could be at risk of losing your green card; whereas if you are a U.S. citizen, your passport would not be revoked simply for living in another country.
Sponsoring Family Members
As a U.S. citizen, you can sponsor your spouse, parents, children, and siblings for green cards. Although there are wait times for siblings of U.S. citizens, there are no wait times for spouses, unmarried children under 21, and parents of U.S. citizens. As a green card holder, you are not eligible to sponsor your parents.
Economic Opportunities
U.S. citizenship can open doors to job opportunities that require or give preference to U.S. citizens. Additionally, it can make it easier to start your own business, access financial services, and benefit from economic programs.
Educational Benefits
U.S. citizens may have access to educational opportunities, including scholarships and grants that may not be available to non-citizens.
Expansion of Dual Citizenship
Contrary to popular belief, U.S. law recognizes the concept of “dual nationality” – so you will not necessarily lose your current citizenship(s) by becoming a U.S. citizen. Some countries will not allow you to maintain your citizenship if you become a U.S. citizen, but many countries that formerly prohibited dual nationality have abolished or substantially relaxed their prohibitions.
No More Renewal Fees and Say Good-bye to Immigration
When a person has a green card, that card must be renewed every 10 years by filing an application and filing fee with the immigration service. Once a person has U.S. citizenship, there is no obligation to renew that status. In addition, once you have U.S. citizenship, you should never have to deal with the immigration service again.
How to Get Started
If you are considering applying to become a U.S. citizen, and if you believe you meet the eligibility requirements listed above, we would be happy to have a consultation with you to discuss any questions you might have about the process. Please email info@cmlseattle.com to schedule.
Possible Employment-Based Immigration Changes Under New Administration
An outline of the possible changes to employment-based immigration under the new Trump administration.
While it is impossible to predict what changes are in store for immigration under the next Trump administration, the American Immigration Lawyers Association has developed a list of possible policies that could impact employment-based immigration matters.
What We Might Expect
In the short-term, it is possible there could be:
An implementation of travel bans for individuals from certain countries (countries previously impacted during the last Trump administration included Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen, Venezuela, North Korea, Chad, Egypt, and Mali)
A heightened level of scrutiny, greater unpredictability and potential delays in processing of petitions and applications filed with USCIS and U.S. Consulates, as well as upon entry to the U.S. for individuals from all countries. For example, we may see an increase in RFEs and denials on cases
An increase in consular administrative processing delays for visa applications
Potential elimination of DACA, Temporary Protected Status (TPS), and other humanitarian parole programs. Current TPS countries include Afghanistan, Burma, Cameroon, El Salvador, Ethiopia, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, Ukraine, Venezuela, and Yemen
Longer processing times for all types of applications
Stopping the current practice of adjudicating H-4 EAD applications at the same time as the H-1B petition (leading to delays in the issuance of H-4 EADs)
An increased emphasis on Worksite Enforcement, such as Anti-Fraud site visits and audits for I-9s and H-1B Public Access File compliance
Reinstatement of in-person interview requirements for all green card applications
Reinstatement of biometrics requirements for H-4 dependents and other dependent categories
An increase in immigration-related expenses due to higher level of RFEs/denials, potential increase in filing fees, and increased need to use the premium processing program
Longer-term, we might see:
A modification of prevailing wage requirements for H-1B and PERM cases, making it harder to sponsor foreign nationals for entry-level, Level 1 wage, or lower paying roles
A restriction or elimination of OPT and STEM OPT work authorization programs for F-1 foreign student visa holders
A reinstatement of stricter "public charge" requirements for green card applications, requiring applicants to provide extensive documentation of financial resources
An elimination of existing automatic extensions of EADs
Potential revocation of the regulation authorizing the issuance of EADs to H-4 spouses
How to Prepare
The following are some ideas that could be implemented to prepare your team and your foreign national employees for these changes:
Organizing a day where foreign national employees can schedule a brief (10 minute) consultation with an immigration attorney, where they can discuss their immigration concerns
Advising your foreign national employees to exercise caution and restraint in traveling internationally on or after January 20
Setting expectations for increased processing times and a higher level of scrutiny/unpredictability for all types of immigration applications
Preparing for delays in consular processing of visa applications at U.S. Consulates abroad, including advising the business on the possibility that the foreign national employee applying for a visa abroad may be delayed in their ability to return to the U.S.
Conducting an internal audit of I-9 and Public Access Files, in anticipation of potential government audits (let us know if you would like our assistance with this)
Reviewing your H-1B cases to ensure that job/worksite locations are properly reflected on LCAs, in preparation for potential site visits from USCIS or DOL. You might consider asking H-1B employees to confirm their current job title/work location (including home office) to identify gaps
Increasing your immigration budget in anticipation of increased RFEs/Denials, in-person interviews, and usage of the premium processing program to ensure timely adjudication of applications
Reviewing HR records to identify employees in vulnerable statuses (TPS, DACA, Humanitarian Parole) and consulting with immigration counsel to determine whether there might be alternative immigration paths for them
Reconsider your overall recruitment strategy if it relies heavily on F-1 student visa holders with OPT to fill entry-level positions
CML Attorneys are available to discuss any immigration questions, concerns or needs of your organization.