Policy primer: A new $100,000 fee on H-1B Visas

AIP’s research team has created this primer as a guide to rapid and drastic changes in policy that have major implications for the physical sciences community. This is a complex area spanning law and policy, and anyone needing specific advice relating to these changes should consult with appropriate institutional offices or legal counsel.

What has happened?

• On September 19, President Trump issued a proclamation that “the entry into the United States of aliens as nonimmigrants to perform services in a specialty occupation under [the H-1B visa program], is restricted, except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000.”
• The proclamation went into effect at 12:01 am EDT on September 21, 2025, and expires after 12 months.
• Although the proclamation is legally framed as a bar on entry to the US, it appears to be primarily aimed at establishing a fee that dissuades US employers from filing new H-1B petitions (i.e., sponsoring H-1B visas). A US Citizenship and Immigration Services (USCIS) memorandum clarifies that the proclamation does not apply to those who already have H-1Bs or to those whose employers have submitted an H-1B petition to USCIS. New petitions filed after September 21 are subject to this fee.

Are there exceptions?

• Discretionary exceptions: The secretary of homeland security can exempt entities from the fee if she determines that the hiring of any specific person, all workers at a specific company, and/or all workers in a specific industry is in the interest of the US and does not harm national security.
• No exception for cap-exempt visas: No explanatory statement issued by federal agencies in the wake of the proclamation has indicated there is any exception for petitions that are not subject to the cap on the number of H-1B visas awarded annually. Organizations that can sponsor cap-exempt H-1Bs include institutions of higher education, nonprofit entities related to or affiliated with institutions of higher education, nonprofit research organizations, and governmental research organizations.

What are the implications?

• No travel ban imminent: After the proclamation’s publication, there were concerns that H-1B visa holders who are currently out of the country could suddenly be barred from re-entering. However, a USCIS FAQ appears to definitively resolve such concerns, stating the proclamation “does not prevent any holder of a current H-1B visa from traveling in and out of the United States.”
• Impact on international students: International students in the US on F-1 visas are often interested in transitioning on to H-1Bs after the completion of their academic programs. Transitioning to an H-1B requires the prospective visa holder to attend an in-person interview with a consular official in their country of residence or nationality. As the proclamation states the $100,000 must be paid by employers sponsoring new H-1B petitions for workers who are “currently outside the United States,” it appears the fee would apply. This expense may cause international students in the physical sciences to lose their employment opportunities and research organizations to be unable to afford to hire international STEM graduates of US universities.
• Long-term impact on international talent exchange: The proclamation would in general impose severe burdens on employers who bring in international talent by sponsoring H-1B visas and would likely result in many employers declining to hire individuals from abroad.

How is this being justified?

• Rationale for action: The proclamation is explicitly hostile to the H-1B visa program as it stands, citing complaints about employers abusing it by hiring international workers, rather than American citizens, to suppress salaries. The proclamation also alleges that some abuses amount to a national security threat.
• Rationale for the fee: The proclamation frames the imposition of a fee as a mechanism for combating abuses “while still permitting companies to hire the best of the best temporary foreign workers.”
• Underlying authority: The proclamation leans on two statutory authorities:
  
  • 8 USC 1182(f) / INA 212(f) : “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate…”
  • 8 USC 1185(a) / INA 215(a) : “Unless otherwise ordered by the President, it shall be unlawful-(1) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe…”

Is the proclamation vulnerable to legal challenge?

• Limits on presidential authority: In 2018, the Supreme Court held in Trump v Hawaii that section 212(f) “exudes deference to the President in every clause,” but the opinion indicated the president would be exceeding the authority granted by 212(f) if a proclamation is in “contradiction with another provision” of immigration law.
• Conflicting provision: This proclamation appears to be in tension with 8 USC 1356(m) / INA 286(m) , which states that “fees for providing adjudication and naturalization services may be set at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants. Such fees may also be set at a level that will recover any additional costs associated with the administration of the fees collected.”
• Potential questions for litigation: Given the president does have broad power to bar entry via 212(f), whether that power includes conditioning entry on the payment of a fee well exceeding administrative costs is apt to be litigated. Such litigation could reach the Supreme Court, as have many other recent assertions of expansive presidential power.

Unanswered questions

• The proclamation’s provision stating that the $100,000 payment must be paid by employers sponsoring new H-1B petitions for workers who are “currently outside the United States” is not reflected in the USCIS FAQ, which only states that the proclamation requires a “$100,000 payment to accompany any new H-1B petitions.” The question arises whether there are any cases where sponsors of visa applicants who are within the US might be exempted from the fee. If the proclamation is indeed limited to beneficiaries who are outside the United States, there is ambiguity as to what “currently” means. Does the proclamation come into effect if the beneficiary is outside the United States at the time of receipt of their H-1B petition by USCIS, or is the fee triggered by any presence outside the United States as of the effective date of the proclamation (September 21, 2025)?
• What proof would an H-1B beneficiary be required to present to the State Department to show that the fee was due and has been paid?
• The Department of Labor (DOL) is directed in the proclamation to update the prevailing wage levels used for H-1B petitions to be “consistent” with the proclamation, meaning that the levels should be increased to mitigate downward pressure on Americans’ wages in similar jobs. How will the prevailing wage levels be changed? How will the new system affect hiring in the physical sciences community?