On September 19, 2025, the White House issued a presidential proclamation, “Restriction on Entry of Certain Nonimmigrant Workers,” imposing significant new restrictions on the admission of H-1B specialty occupation workers. The order requires a $100,000 payment for each H-1B petition, effective at 12:00 a.m. EDT on September 21, 2025, and directs agencies to verify compliance before approving petitions or visas. The measure was broadly written without distinguishing between different types of H-1B filings, and as drafted, appeared to immediately impact all foreign nationals outside the United States with H-1B approvals. Limited national interest exemptions were referenced, but no further details were provided.
This announcement created immediate uncertainty for employers and H-1B employees, particularly regarding travel and reentry. Legal professionals initially advised avoiding international travel and, for those abroad, making every effort to enter the United States before the effective date. At that time, the impacts on cross-border commuters remained unclear, and litigation was anticipated.
Government Clarifications Issued September 20, 2025
Within 24 hours, both US Citizenship and Immigration Services (USCIS) and US Customs and Border Patrol (CBP) issued statements that substantially narrowed the scope of the presidential proclamation:
- USCIS clarified that beneficiaries of currently approved petitions and those holding valid H-1B visas are not affected. The proclamation applies only prospectively to H-1B petitions that have not yet been filed.
- CBP confirmed that the proclamation does not impact the ability of current visa holders to travel to or from the United States. Processing for existing H-1B visa holders will continue under current policies.
- The Department of State has posted guidance to all consular offices, consistent with CBP and USCIS, confirming that the proclamation does NOT apply to any previously issued H-1B visas, or any petitions submitted prior to 12:01 a.m. EDT on September 21, 2025.
As of publication, it appears that current H-1B visa holders and beneficiaries of approved petitions are not subject to the new restrictions or payment requirement and may continue to travel and work under existing policies. This includes H-1B extensions, amendments, and change of employer applications with extension request.
However, new H-1B petitions filed after the effective date remain subject to the presidential proclamation, and further guidance is still anticipated.
Ongoing Concerns and Unresolved Issues
While agency statements provide welcome relief for many H-1B workers and employers, they do not fully resolve the technical ambiguities created by the original presidential proclamation.
- Cap-exempt institutions are not explicitly excluded from the payment requirement. Universities and not-for-profit organizations remain uncertain about their obligations, as agency guidance currently treats their H-1B petitions as “new” filings subject to the presidential proclamation. While recent statements suggest the proclamation will apply to next year’s annual cap lottery for new filings, neither the language of the proclamation nor agency communications clearly exclude cap-exempt filings, which can occur throughout the year outside of the lottery process.
- Criteria and procedures for national interest exemptions have not been established. Employers and beneficiaries do not yet know how to apply for exemptions or what standards will be used.
- The impact of the new payment on existing H-1B fees, wage rules, and future filings remains unresolved. Employers should anticipate changes to overall costs, compliance requirements, and eligibility—especially for next year’s H-1B lottery.
- The process for collecting and verifying the $100,000 payment remains undefined. Employers still lack guidance on which agency will collect the fee, how payment should be made, and what constitutes sufficient proof. There is no information on whether the fee will be returned if a petition is denied, withdrawn, or unused.
- Responsibility for payment remains with employers, but further clarification may be forthcoming. Current regulations prohibit employees from covering petition fees, but the new requirement could prompt additional guidance.
- No specific nationality-based exemptions have been provided for cross-border commuters. This means that the proclamation appears to apply to H-1B beneficiaries who reside outside the United States and travel in daily for work, including Canadians and Mexicans.
- Prevailing wage and prioritization directives are expected to reshape the H-1B and PERM programs. The presidential proclamation directs the Department of Labor to raise prevailing wage levels and prioritize higher-skilled, higher-paid workers, which could significantly increase employer costs and alter eligibility criteria for both H-1B and PERM sponsorship.
There remain inconsistencies between agency guidance and the language of the proclamation, and further clarification is expected.
Broader Impact: Big Tech, Third-Party Firms, and Cap-Exempt Employers Caught in the Crosshairs
The presidential proclamation’s directive aims to tighten oversight of the H-1B program, particularly targeting third-party placement and IT outsourcing companies that assign workers to client sites. Big tech firms, including Amazon, Microsoft, Meta, Apple, and Google, also stand to be affected, as they rely on H-1B talent for specialized roles and innovation.
However, the impact extends beyond these sectors; smaller H-1B petitioners and cap-exempt employers, such as universities, not-for-profit research institutions, and health care systems, are also at risk. These organizations often file H-1B petitions outside the annual lottery and will struggle to absorb the financial burden, potentially jeopardizing critical services and research. The lack of clear guidance for cap-exempt filings leaves these groups facing the same uncertainty and disruption as larger tech companies.
Conclusion
While the immediate threat to current H-1B visa holders appears to have been mitigated, significant uncertainty remains regarding the implementation and scope of the presidential proclamation. Employers should consult with counsel and prepare for both short-term disruptions and long-term changes to the H-1B program. Barclay Damon will continue to monitor developments and provide updates as new information becomes available.
If you have specific questions regarding the impact of these changes on your organization or employees, please contact Jennifer Behm, immigration counsel at Barclay Damon, at jbehm@barclaydamon.com, or another member of the firm’s Canada-US Cross-Border or Immigration Teams.