US president Donald Trump
President Donald Trump has signed a sweeping proclamation restricting the entry of H-1B visa holders unless their employers pay a supplemental $100,000 fee per worker, triggering alarm across the immigration and business community and setting the stage for immediate legal challenges.The proclamation takes effect September 21, 2025 and applies to any H-1B entering the US after 12:01am Eastern Daylight Time (EDT). The restriction will be valid for twelve months but may be extended on the recommendation of the federal immigration agencies. Trump in his proclamation claims the H-1B program has been ‘deliberately exploited’ to replace US workers with lower-paid foreign labour, particularly in the information technology sector. Citing job losses, wage suppression, and even national security risks, Trump justified the unprecedented fee as a way to curb what he called ‘systemic abuse’.Hundreds of Indians who were successful in the recently concluded H-1B lottery for the fiscal year starting Oct 1 and were eagerly waiting to join their new employment in the US will be impacted. An individual can enter the US up to ten days before the start date indicated on the H-1B approval notice. “Giving flight logistics, how many will make it before the cut-off deadline?” questioned Cyrus D. Mehta, founder of a New York based immigration law firm. He terms the move as cruel and abominable.
For those who cannot return to the US before the deadline, the proclamation can result in not merely job disruption, but also disruption in school education and family life. “Any H-1B who was visiting India with spouse and children, will need to ensure that his employer-company pays up the $100,000 to enable him to return and resume his job. As the H-4 visa (held by dependents such as spouse and children) are co-terminus with the H-1B visa, the family most likely cannot return to the US unless this fee is paid,” explained Poorvi Chothani, managing partner at the Law Quest, an immigration law firm.Immigration attorneys are advising that H-1B visa holders outside the US should return before the deadline to avoid imposition of the fee. Those already in the US should put their travel plans on hold, until further clarity emerges.“American IT workers have reported they were forced to train the foreign workers who were taking their jobs and to sign nondisclosure agreements about this indignity as a condition of receiving any form of severance. This suggests H-1B visas are not being used to fill occupational shortages or obtain highly skilled workers who are unavailable in the US,” states Trump’s proclamation.The White House says the policy will deter misuse of the H-1B program, which has grown to include over 65% IT positions in recent years. But critics argue the fee transforms the H-1B into an elitist ‘pay-to-play’ system.Attorneys remark that the White House has chosen to release the document ‘Restriction on entry of certain non-immigrant workers’ as a proclamation rather than an executive order, but it has the same impact – it is a travel ban, unless the entry fees are paid.The proclamation allows the Department of Homeland Security (DHS) to grant exceptions to the ban for individual foreign nationals, foreign nationals working for a particular company, or foreign nationals working in a specific industry, if in the agency’s discretion the H-1B employment is found to be in the national interest and does not pose a threat to US security or welfare.
A steep barrier to entry
“The entry ban and fee requirement ‘appears’ to apply to any H-1B visa holder entering the US after 12:01am EDT on Sept 21, 2025. It certainly applies to any to-be-filed or pending H-1B application and any new application for an H-1B visa,” states Mitch Wexler, senior counsellor, Fragomen, a global immigration law firm.The proclamation itself is clear. However, when it is read alongside a related White House fact sheet, differences in wording, raise questions about whether the entry restrictions apply to people with an H-1B application or visa already approved before the proclamation’s effective date. Until there is official clarification, the proclamation as written, should be followed, explained Fragomen in communique.Addressing an anxious audience over a telecast, Greg Siskind, founding partner at Siskind Susser, an immigration law firm said the travel ban, subject to payment of the fees, would also apply to H-1B cap exempt visa holders. Currently, exemptions from the 85,000 annual cap (quota) apply to jobs at higher education institutions, nonprofit research organizations, and government research entities.Immigration attorneys point out grey areas and questions that currently remain unanswered, especially as regard H-1B visa extensions. The initial H-1B visa has a maximum tenure of three years, post which an extension is required which can be of another three years. After the six year period, an H-1B holder can work in the US only if the green card process has been initiatedChothani states, “Extensions of stay inside the US, including change of employer, change of status and amended petitions —where the beneficiary (sponsored H-1B employee) remains in lawful H-1B status—are not expressly covered, so unless instructed otherwise, it appears they are exempt. However, the fee would be applicable to those who subsequently leave and re-enter the US. in H-1B status while the proclamation is effective.”Siskind mentioned that official clarification is required on whether the fee is payable in those cases where an individual is already in the US but an H-1B extension is required. “My guess is that it will apply to new filings for an extension, not to those filed before the proclamation,” he added.Questions also arise on how national waiver interest can be sought by those who have already been allotted H-1B visas.“The proclamation directs the Secretary of State to issue guidance to ensure that those who are holding an approved H-1B application before Oct 1, 2026 do not misuse the B-1/B-2 visa. This is likely to mean that such individuals seeking to enter the US as visitors for business or tourism may be subject to higher scrutiny when applying for a B visa,” explained Wexler.
Attorneys gear up for legal challenges
Legal experts anticipate rapid litigation seeking to block implementation before the fee kicks in. Courts will be asked to weigh whether the President’s authority under Section §212(f) of the Immigration and Nationality Act (INA) to suspend entry of noncitizens extends to imposing financial conditions – aka the steep entry fee.Abhinav Tripathi, immigration attorney and founder of Protego Law Group said, “The President relies on INA 212(f), which allows suspending entry of noncitizens. In Trump v. Hawaii (2018), the Supreme Court upheld a broad travel ban. But that was an outright ban, not a financial condition. Conditioning entry on a six-figure payment looks more like taxation, which only Congress can impose. Further, Congress has already set the H-1B fee structure. A presidential proclamation cannot override that with a new payment scheme.”“While the proclamation itself is not subject to the Administrative Procedure Act (APA), the agencies that implement it are. If Department of Homeland Security (DHS) or Department of State (DOS) begins enforcing the $100,000 payment condition immediately, without going through notice and comment rulemaking, those enforcement actions are vulnerable under the APA – which calls for an appropriate procedure (such as public notice and inviting comments) to be followed prior to implementation,” added Tripathi.According to Cyrus D. Mehta, immigration attorney, despite the Supreme Court upholding a travel ban earlier, this proclamation could be successfully challenged, “The proclamation banning H-1B workers is so blatantly unlawful that it rewrites parts of the INA. It does not carve out exceptions for those who already have been issued H1-1B visas or who were here in the US when the proclamation took effect. Prior bans clearly had exceptions for those who were present in the US on the effective date and then left. I also think that H-1B visa holders who with prior residence in the US going back over a decade (especially India born H1-B beneficiaries caught in the green card backlogs) would have a strong due process claim if they were briefly outside the US and could not get back by the cut off deadldine under the new proclamation.”Immigration attorney Ashwin Sharma described the measure as “executive taxation without Congress approval,” predicting swift lawsuits: Section 212(f) of the INA allows suspending entry, but it does not authorize a $100,000 charge or rewriting USCIS and DOS fee schedules by executive proclamation alone. This fee is unlawful on its face and appears entirely performative, calibrated to deliver a chilling effect on employers, and campuses.”Doug Rand, a former DHS official, dismissed the move as political theater: “This isn’t real policy — it’s fan service for immigration restrictionists. Trump gets his headlines and inflicts a jolt of panic, and doesn’t care whether this survives first contact with the courts.”The American Immigration Lawyers Association (AILA) called the proclamation a dangerous overreach. Jeff Joseph, President (AILA) said, “America’s need for talented foreign professionals to fill critical workforce gaps, keep the economy moving forward, and create new jobs has not changed under the Trump Administration. But overnight, this administration has turned the high-skilled H-1B program into a ‘pay-to-play’ system and has effectively shut out teachers, non-profits, researchers, rural doctors, clergy, and other professionals who simply can’t afford Trump’s elitist revisioning of the H-1B program. Rather than working with Congress to strengthen and revitalize this critical high-skilled worker program, the President has overstepped his executive authority on a proposal that will undermine innovation and prevent businesses both large and small from accessing the talent they need.”Whether the $100,000 fee survives court scrutiny or collapses under immediate injunctions, attorneys agree on one thing: the proclamation has already sewed uncertainty among employers, universities, and foreign skilled professionals.
