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.