H-1B Travel Ban, Day Two (Update on $100,000 H-1B Visa Fee Rule)

The White House recently issued clarifying statements, and the DHS published two separate memoranda, further explaining the impact of September 19th’s Presidential Proclamation. The Proclamation imposes a $100,000 surcharge on new H-1B visa petitions for individuals outside the United States, as of September 21, 2025. It appears the new Executive Order should not impact the international travel of existing H-1B visa holders. 

In light of these two agency memoranda, our prior warning that existing H-1B petition beneficiaries and/or visa holders avoid international travel due to possibly being subject to this travel ban is no longer in effect. Other travel restrictions could be imposed with little notice in the future, so our existing travel warning remains in effect. 

As we first reported, the Executive Order is sloppily drafted and full of inconsistencies. The language does not appear to necessarily apply to H-1B visa holders within the United States maintaining H-1B visa status, but the language was internally contradictory and ambiguous. Further, the Executive Order's language contradicted verbal statements made by Secretary of Commerce Lutnick, who said the new $100,000 fee would apply to new H‑1B petitions and renewals. 

Attempting to either clarify prior statements, (or backtrack from its initial posture), the White House semi-officially clarified its intent with the following statements via anonymous leak to an Axios reporter: 

• This particular Executive Order does not apply to anyone who has a current H-1B visa; and 

• This particular Executive Order only applies to future applicants in next year’s H-1B lottery, who are currently outside the U.S. It does not apply to anyone who participated in this year’s lottery and await approval of their H-1B visa petitions. 

These statements are now supplemented by USCIS and USCBP memoranda issued September 20, 2025. These two memoranda separately affirm that H-1B visa holders—and those previously granted H-1B visa status by USCIS—will trigger no new surcharge by international travel. 

As previously reported, this H-1B visa admission ban will expire 12 months after its effective date on September 21, 2025, unless extended. Thus, it would only seem to apply to those companies who “win” next year’s H-1B lottery, and subsequently file a new H-1B petition for next year’s lottery winners. 

The other key provisions of the Proclamation remain in effect, without further clarification: 

• “National Interest” Exception from the $100,000 Fee: The Secretary of Homeland Security is granted the discretion to waive the $100,000 fee for specific individuals, companies, or industries if their employment is determined to be in the national interest. 

• Future Rulemaking to Increase Wages: The proclamation directs the Secretary of Labor to initiate a formal rulemaking process to revise upwards the prevailing wage levels for H-1B workers. 

• Prioritization of High-Skilled Workers: The Department of Homeland Security is instructed to develop new regulations to prioritize H-1B visas for the highest-skilled and highest-paid foreign workers, signaling a potential shift away from the current lottery-based system. 

The status of future H-1B petitions remains unclear. Anonymous quotes reported in the media indicate President Trump intends the $100,000 surcharge to apply only to winners of the 2026 H-1B lottery. Further, the White House Press Secretary Leavitt has tweeted that the surcharge applies only to “new visas, not renewals, and not current visa holders.” Implicitly, then, future extensions of H-1B status and future transfers of H-1B visa status should be approved without surcharge payment. It is possible that USCIS may consider "new" (consular notification) petitions for existing employees to be subject to the surcharge. This interpretation is reflected in the Department of State news posting at https://travel.state.gov/content/travel/en/News/visas-news/restriction-on-entry-of-certain-nonimmigrant-workers.html and FAQ at https://www.state.gov/h-1b-faq/ which states that the Proclamation requires a "$100,000 payment to accompany any new H-1B visa petitions submitted after 12:01 a.m. eastern daylight time on September 21, 2025. This includes the 2026 lottery, and any other H-1B petitions submitted after 12:01 a.m. eastern daylight time on September 21, 2025..." and that the Proclamation does "not change any payments or fees required to be submitted in connection with any H-1B renewals. The fee is a one-time fee on submission of a new H-1B petition." Absent formal agency guidance, however, it is impossible to define exactly which class of future H-1B petitions will and won’t suffer the surcharge. We will continue to provide updates as they happen. 

U.S. Department of Homeland Security   U.S. Citizenship and Immigration Services   Office of the Director   Camp Springs, MD 20588-0009   September 20, 2025   Memorandum   TO:    Associate Directors,   Deputy Associate Directors, Program Office Chiefs   FROM:   Joseph B. Edlow   JOSEPH B EDLOW   Digitally signed by JOSEPH B EDLOW Date: 2025.09.20   Director, United States Citizenship and Immigration Serv17i:c26e:3s8 -04'00'   SUBJECT: Proclamation, Restriction on Entry of Certain Nonimmigrant Workers, H-1B   On September 19, 2025, the President issued a Proclamation, Restriction on Entry of Certain Nonimmigrant Workers, to address systemic abuse of H-1B nonimmigrant visas. Pursuant to sections 212(f) and 215(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(f) and 1185(a), the entry into the United States of aliens as nonimmigrants to perform services in a specialty occupation under section 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C.   1101(a)(15)(H)(i)(b), is restricted, except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000. This guidance applies to H-1B employment-based petitions filed after 12:01 AM ET on September 21, 2025.   This proclamation only applies prospectively to petitions that have not yet been filed. The proclamation does not apply to aliens who: are the beneficiaries of petitions that were filed prior to the effective date of the proclamation, are the beneficiaries of currently approved petitions, or are in possession of validly issued H-1B non-immigrant visas. All officers of United States Citizenship and Immigration Services shall ensure that their decisions are consistent with this guidance. The proclamation does not impact the ability of any current visa holder to travel to or from the United States.   cc: David V. Roy, Chief Counsel (A)   FOUO, For Official Use Only

September 20, 2025   MEMORANDUM FOR:  Executive Directors   Directors, Field Operations Office of Field Operations   1300 Pennsylvania Avenue. NW Washington. DC 20229   U.S. Customs and Border Protection   FROM:   SUBJECT:   Executive Director, Admissibility and Passenger Programs Office of Field Operations   Proclamation, Restriction on Entry of Certain Nonimmigrant Workers [H-IB]   On September 19, 2025, the President issued a Proclamation, Restriction 011 Entry of Certain Nonimmigrant Workers, to address systemic abuse of Hl-B nonimmigrant visas. Pursuant to sections 212(f) and 215(a) of the Immigration and Nationality Act (INA), 8 U.S.C. l 182(f) and l 18S(a), the entry into the United States of aliens as nonimmigrants to perform services in a specialty occupation under section 10l(a)(l5)(H)(i)(b) of the INA, 8 U.S.C. 1101(a)(l S)(H)(i)(b), is restricted, except for those aliens whose petitions are" accompanied or supple111e11ted" by a payment of$100,000. This guidance applies to H-IB employment-based petitions filed after 12:01 AM ET on September 21, 2025.   This Proclamation only applies prospectively to petitions that have not yet been filed. It does not impact aliens who are the beneficiaries of currently approved petitions, any petitions filed prior to 12:01 AM ET on September 21, 2025, or aliens in possession of validly issued H-1B non-immigrant visas. United States Citizenship and Immigration Services and the Department of State have been instructed to begin implementing the new monetary requirements for employers submitting petitions on behalf of aliens outside the United States for new H-1B petitions only. The Proclamation does not impact the ability of any current visa holder to travel to or from the United States. CBP will continue to process current H-1B visa holders in accordance with all existing policies and procedures. Aliens found inadmissible should be processed in alignment with existing guidance for the appropriate Title 8 disposition.   Please ensure this memorandum is distributed to po1t personnel. Should you require additional information, please contact        , Director, Enforcement Programs Division.   For Official Use Only Law Enforcement Sensitive