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.