Chicago Immigration Lawyer Blog
The recent presidential proclamation imposing a $100,000 fee on certain H-1B petitions has caused alarm among employers, workers, and their counsel. At Zneimer & Zneimer, P.C., we want our clients to understand the scope of this rule, why it applies only to entry, and what risks arise when a worker changes employers and later travels abroad.
Authority under INA § 212(f)
The proclamation rests on INA § 212(f), 8 U.S.C. § 1182(f), which empowers the president to “suspend the entry of all aliens or any class of aliens” or impose “any restrictions” deemed appropriate on their admission. Importantly, this power governs entry at the border, not the status of people who are already inside the United States. By its terms, the proclamation:
- Applies to foreign nationals outside the U.S. seeking to enter after the effective date after 12:01 AM (ET) on September 21, 2025
- Does not apply to extensions of status or change-of-status petitions filed while the worker remains inside the United States.
- Does not alter the validity of previously approved H-1B petitions or visas.
USCIS and CBP have both confirmed that the rule is entry-focused as it imposes a condition of admission, not a retroactive obligation for individuals already maintaining lawful status in the U.S.
What Happens with New Petitions and Travel?
A thorny question arises under the Proclamation when a worker already in the U.S. changes status to H-1B or is already in H-1B and changes employers after the effective date of the proclamation. In both cases, the filing will be a new H-1B petition on behalf of the foreign worker. Suppose a beneficiary has a valid H-1B petition and a subsequent employer files a new petition (“H-1B transfer”). While the worker remains in the U.S., the proclamation does not apply based on its express terms:
Section 1. Restriction on Entry.
(a) 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….
(b) The Secretary of Homeland Security shall restrict decisions on petitions not accompanied by a $100,000 payment for H-1B specialty occupation workers under section 101(a)(15)(H)(i)(b) of the INA, who are currently outside the United States….
See, Restriction on Entry of Certain Nonimmigrant Workers, Presidential Proclamation (Sept. 19, 2025), issued under INA §§ 212(f) and 215(a), 8 U.S.C. §§ 1182(f), 1185(a).
Let’s parse this language.
Textual Analysis
Section 1(b) directs DHS to restrict petition decisions for H-1B workers “currently outside the United States.” That condition attaches at petition adjudication, not at visa stamping.
Section 1(a) restricts “entry … except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000.”
Section 2(b) says the Secretary of State “shall verify receipt of payment … during the H-1B visa petition process.”
So DOS has a role at the visa issuance stage, consular officers must confirm that the employer made the $100,000 payment if the proclamation requires it.
- What Happens if The Worker Was Inside the U.S. at Petition Filing
If the worker was inside the U.S. when the new petition was filed and adjudicated, Section 1(b) does not require the $100,000 payment.
When that worker later travels abroad for visa stamping, the petition itself was already adjudicated without the fee because the person was not “currently outside.”
Consular officers should not impose the fee retroactively, because DOS can only “verify” a payment where one is legally required under Section 1(b).
- What Happens if the Worker Was Outside at Petition Filing
If the worker was outside the U.S. when the petition was filed after Sept. 21, 2025, the proclamation requires the $100,000 payment at the petition stage. DOS must then verify payment before issuing a visa, and CBP must enforce it at the border.
Practical Concern
Even though the text supports exemption for those who were inside the U.S. at filing, DOS might take a broader view at consular posts, reasoning that “Entry under this petition requires proof of the $100,000.” That would stretch the proclamation, but consular discretion is wide.
- Employers should retain proof of the worker’s U.S. presence at the time of petition filing (I-94, pay records, affidavits).
- Workers should carry this documentation to the consular interview to rebut any attempt to misapply the fee.
- If a consulate insists on payment despite the exemption, that could set up grounds for an APA or ultra vires challenge.
Risk Management and Strategy
At Zneimer & Zneimer, we advise employers and H-1B workers to:
- Assess travel needs carefully after a new petition. Unnecessary international travel may create exposure to the $100,000 condition.
- Document exemptions where possible. Nonprofit institutions of higher education, nonprofit research organizations, and government research entities often qualify for relief.
- Prepare waiver arguments in advance if national interest justifications apply.
- Monitor agency guidance. DHS and the Department of State are expected to issue further instructions on how consular posts and ports of entry will implement this rule.
Conclusion
Because the proclamation derives from INA § 212(f), its reach is limited to entry into the United States. Workers inside the country who extend or change status are not directly affected. But once a worker travels abroad, the $100,000 condition may apply when they return, especially if they reenter under a new employer’s petition. We are waiting for further guidance. Immigration law is often subject to rapid changes, and employers cannot afford to make mistakes. At Zneimer & Zneimer, P.C., we provide ongoing analysis and proactive strategy to protect our clients’ interests. Contact us today to review how this proclamation affects your workforce and to plan the safest path forward.