H-1B visas have been in the news this last week, beginning with a Presidential Proclamation creating a new $100,000 fee for H-1B visa petitions, as well as related federal agency guidance and, most recently, the Department of Homeland Security’s notice of proposed rulemaking to change the existing H-1B visa lottery process.
H-1B Visa
The H-1B visa allows American employers to temporarily employ foreign workers in occupations that require highly specialized knowledge. Each year, the U.S. Citizenship and Immigration Services (USCIS) allows a total of 65,000 H-1B visas, plus an additional 20,000 specifically for workers with a master’s degree or higher. The USCIS uses a lottery process to determine which employers will receive the limited number of visas.
Presidential Proclamation
On September 19, 2025, President Trump issued the “Restriction on Entry of Certain Nonimmigrant Workers” proclamation in response to the “severe harms that the large-scale abuse of [the H-1B visa] program has inflicted on our economic and national security demands.”
To address these issues, the proclamation requires that employer petitions for H-1B visas now include a $100,000 payment for each visa petition, which must be paid before the petition is filed. The Secretary of Homeland Security can make exceptions to this requirement for individual workers or all workers in a company or industry if doing so would be in the national interest and not pose a threat to the security or welfare of the United States.
The proclamation also orders:
- The Secretary of Labor to initiate rulemaking to revise the prevailing wage rate for H-1B workers to levels consistent with the policy goals of the proclamation; and
- The Secretary of Homeland Security to initiate rulemaking to prioritize the admission as nonimmigrants of high-skilled and high-paid aliens.
New Fee Guidance
Shortly after this proclamation was issued, the White House and various government agencies issued clarifying guidance.
On September 21, 2025, the White House issued an H-1B FAQ, clarifying that the $100,000 fee is a one-time fee for submission of a new H-1B petition. The FAQ also states that the proclamation:
- Does not apply to any previously issued H-1B visas, or any petitions submitted prior to 12:01 a.m. EDT on September 21, 2025;
- Does not change any payments or fees required to be submitted in connection with any H-1B renewals; and
- Does not prevent any holder of a current H-1B visa from traveling in and out of the United States.
On September 20 and 21, 2025, respectively, the USCIS issued a memorandum and an H1-B FAQ confirming the above. It also noted that the proclamation will apply to petitions submitted as part of the 2026 H-1B lottery and will not impact aliens whose petitions were filed or approved prior to the proclamation’s date or holders of validly issued H-1B visas.
Additionally, on September 20, 2025, the U.S. Customs and Border Protection issued a Memorandum, which notes that the USCIS and the Department of State have been instructed to implement the new monetary requirement only for employers submitting new H-1B petitions on behalf of aliens outside the U.S.
On September 21, 2025, the U.S. Department of State issued a similar FAQ.
Proposed Rulemaking
Lastly, on September 24, 2025, the Department of Homeland Security released a Notice of Proposed Rulemaking regarding the H-1B visa lottery, which proposes “a weighted selection process that would generally favor the allocation of H-1B visas to higher skilled and higher paid aliens.” Written comments on the notice of proposed rulemaking must be submitted on or before October 24, 2025, through the Federal eRulemaking Portal.
What’s Next?
There are still unanswered questions about the new H-1B fee, such as how it will be collected and what, if any, exceptions will be granted by the Secretary of Homeland Security. In addition, legal challenges are expected. Given the uncertainty, employers submitting H-1B visa petitions after September 21, 2025, should consult legal counsel to ensure compliance.
Erika Barbara, Senior Employment Law Counsel, CalChamber
CalChamber members can read about the H-1B visa in the HR Library. Not a member? See how CalChamber can help you.
