Interpreting the H-1B Proclamation: Clarity vs. Confusion

Late on Friday, September 19, 2025, President Trump issued a proclamation entitled “Restriction on Entry of Certain Nonimmigrant Workers” (the “Proclamation”) which materially impacts H-1B employers and employees. The Proclamation, which became effective as of 12:01 a.m. EDT Sunday, September 21, 2025 (the “Effective Date”), imposes a new $100,000 fee on any new H-1B visa petitions submitted after the Effective Date and will remain in place for one year.

Initially, the broad language of the proclamation was viewed as applying to all H-1B petitions as well as to H-1B workers who were outside the United States who were seeking to enter the United States on or after the Effective Date. This led to understandable confusion and caused many H-1B visa holders to hurriedly return to the United States over the weekend.

What has followed has been the issuance of policy clarifications and FAQs by the White House, U.S. Citizenship and Immigration Services, the U.S. Department of State and U.S. Customs and Border Protection seeking to clarify and narrow the application of the Proclamation.

The essence of those FAQs is that the Proclamation requires a $100,000 payment to accompany any “new” H-1B visa petitions submitted after the Effective Date which includes the FY2027 H-1B lottery (for registrations that will be submitted in 2026) and any other “new” H-1B petitions submitted.

The FAQs expressly state that the Proclamation:

• Does not apply to any previously issued H-1B visas, or any petitions submitted prior to the Effective Date.
• Does not change any payments or fees required to be submitted in connection with any H-1B extensions. The fee is a one-time fee on submission of a new H-1B petition.
• Does not prevent any holder of a current H-1B visa from traveling in and out of the United States.

The FAQs do not, however, clearly address (1) what constitutes a “new” H-1B petition; (2) whether, among other things, the Proclamation applies to cap-exempt employers; (3) when and how the $100,000 fee is to be paid, and (4) the mechanism or the criteria for employers to seek a waiver of the new fee. The answers to these and other questions presumably will be provided in the days and weeks to come. We anticipate that these questions and the underlying implementation of the Proclamation and the ensuing FAQs will face judicial challenges.

It is important to note that the imposition of the $100,000 fee is an initial step that has been taken in an attempt to reform the H-1B program. The Proclamation and the FAQs go on to state that further rulemaking is to be undertaken (a) by the U.S. Department of Labor to revise and raise the prevailing wage levels; and (b) by the U.S. Department of Homeland Security to prioritize high-skilled, high-paid aliens in the H-1B lottery over those at lower wage levels.

Exercising Caution Is Critical Until Further Clarity Becomes Available

In light of the lack of clarity as to the scope of the Proclamation in certain circumstances and the fact that more clarifications are likely to come, H-1B employers and their H-1B employees should consider the following until further clarity becomes available:

• H-1B workers with plans to travel outside of the United States for visa processing/renewals or other reasons should postpone such plans until further details become available and the likely court challenges are adjudicated.
• For individuals with unavoidable foreign travel, they should anticipate significant delays in their ability to return to the United States but should also seek legal advice and avoid using a B visa to reenter to circumvent the Proclamation.
• Although the Proclamation does not specifically address H-4 dependents (family members), they too should exercise caution regarding travel.
• Because litigation challenges are anticipated, employers and employees should expect new instructions and guidance with little notice and should also be planning alternative immigration strategies for future travel and maintenance of status.

Williams Mullen is closely monitoring the situation and will provide updates as further information becomes available.