When first released, the proclamation’s broad wording implied that it could potentially impact the travel and reentry of all existing H-1B visa holders, rather than only first-time H-1B beneficiaries. This led to widespread concern and a rush for H-1B visa holders to return to the United States. On Saturday evening, the United States Citizenship and Immigration Services (USCIS) issued a memorandum limiting the impact of the proclamation. Additionally, on Sunday, September 20, the White House published an H-1B FAQ confirming that the USD 100,000 fee applies to H-1B Petitions submitted for the 2026 lottery and any other new H-1B Petitions filed after the effective date. Due to conflicting language in guidance issued since the original proclamation, questions remain regarding which “new” H-1B Petitions are impacted.

The wide media coverage of and speculation about the new fee and related travel restrictions have heightened the already high anxiety among foreign national employees on H-1B visas and led to uncertainty for employers guiding their H-1B workers on the proclamation’s impact.

While key details have yet to be announced and legal challenges could delay implementation, here is what we know so far. 

The proclamation

• Only applies prospectively to H-1B petitions that have not yet been filed. It does not apply to beneficiaries of petitions filed prior to the effective date to the proclamation, beneficiaries of currently approved petitions, or beneficiaries in possession of validly issued H-1B non-immigrant visas.
• Impacted H-1B beneficiaries are restricted from entry to the United States unless they have paid the USD 100,000 fee.
• Prohibits adjudication of “new” H-1B Petitions without proof of payment of the USD 100,000 fee for H-1B.
• Directs the Secretary of State to issue guidance to prevent the misuse of B visas by H-1B beneficiaries with employment start dates prior to October 1, 2026.
• Provides a national interest exception to the USD 100,000 fee for those workers, companies, or industries for which the Secretary of Homeland Security determines the H-1B workers’ employment is in the national interest and does not pose a security threat.
• Requires employers to obtain proof of payment of the USD 100,000 fee before filing an H-1B Petition for a worker outside the United States as a condition of approval.
• Requires that within 30 days of the next H-1B lottery in March of 2026 the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Secretary shall jointly submit a recommendation on whether an extension of the restriction on reentry is in the best interest of the United States.
• Directs the Secretary of Labor to initiate rulemaking to revise prevailing wage levels.
• Directs the Secretary of Homeland Security to prioritize admission of high-skilled and high paid foreign nationals.

Frequently asked questions

Does the proclamation apply to recent H-1B cap beneficiaries or all H-1B visa holders?

No. Based on the most recent guidance, the proclamation does not apply to recent H-1B cap petition beneficiaries or current H-1B visa holders. The USCIS clarifying memorandum makes clear that the proclamation only applies prospectively to petitions that have not yet been filed. It does not apply to beneficiaries of petitions filed prior to the effective date to the proclamation, beneficiaries of currently approved petitions, or beneficiaries in possession of validly issued H-1B non-immigrant visas.

Given the USCIS memorandum, current H-1B visa or status holders may continue to travel internationally and reenter the United States in H-1B status with a valid H-1B visa and the new fee does not apply to those H-1B cap beneficiaries from the 2025 lottery.

How does an employer pay the fee?

Payment procedures have not yet been announced. The fee is a one-time fee that applies only to a new H-1B Petition. There is uncertainty on how often the fee must be paid and if the employer must pay the new USD 100,000 fee in the same manner as the existing fees and costs related to the H-1B.

What might qualify as being in the national interest?

Although there is no specific guidance on the national interest exception, employers should expect that the exceptions will be granted on a limited basis. Routine positions that do not advance the US national interest will not qualify. There is no information yet available regarding how an H-1B beneficiary, or their employer, would request entry under this exception.

Are cap-exempt employers (such as universities, nonprofit research institutions, or affiliated nonprofits) exempt from the new USD 100,000 fee?

No. Cap-exempt employers are not specifically exempted from the fee. It remains uncertain whether discretionary national interest exemptions would apply to cap-exempt employers.

Does an employer have to pay the USD 100,000 fee for H-1B extensions inside the United States?

The proclamation makes no reference to petitions requesting an extension of the H-1B for workers in the United States. It is not clear at this time whether the fee could apply top H-1B “change of employer” or “change of status” petitions.

What are the long-term implications of the proclamation for employers?

In addition to potentially restricting the travel of new H-1B visa holders, the proclamation also instructs the Department of Labor (DOL) to review current wage levels for H-1B petitions. It is expected that DOL will raise the minimum wage required for certain H-1B Petitions on a moving forward basis, which could impact the ability of employers to file new and extended H-1B Petitions for employees.

The proclamation aligns with earlier Executive Orders intended to address potential abuse of visa programs. Consistent with this directive, agencies have scrutinized visa applications and petitions more closely, which has led to an increase in Requests for Evidence and Denials. Securing initial and extended H-1B work authorization for employees will be increasingly more challenging in the current environment.

How should we prepare our employees?

• Consider scheduling office hours or town halls to address employees concerns about the proclamation and other immigration related developments.
• Discuss or prepare high level talking points regarding the proclamation and its impact on potential H-1B beneficiaries in the 2026 lottery for key stakeholders including Senior Management, Legal, HR, and affected employee’s Managers.
• Stay current with potential legal challenges that may result in an injunction of some or all of the proclamation.
• Contact counsel as questions arise regarding the proclamation, international travel considerations, and going forward strategy for the next H-1B lottery and new H-1B Petitions.

Baker McKenzie will provide further developments as they become available.