Trump Administration imposes $100,000 fee for new H-1B petitions and proposes giving priority to higher-wage positions in H-1B Lottery

The Proclamation was released in concert with other agency actions, including a September 24, 2025 USCIS Notice of Proposed Rulemaking (NPRM) that would replace the current random H-1B lottery selection process with a weighted selection process designed to prioritize H1-B visas for higher-paid workers (when H-1B petition filings exceed the annual quota), and a Department of Labor initiative to increase H-1B oversight and enforcement.

These measures represent significant changes to the H-1B program and will likely have immediate implications for U.S. employers that rely on H-1B workers, and in particular employers recruiting new hires who need to change status to H-1B.

Key Takeaways – New $100,000 Payment

1. Primarily targets new petitions: The Proclamation’s $100,000 fee primarily targets new H-1B petitions arising from the March 2026 lottery, particularly for beneficiaries located outside the United States. The Proclamation’s $100,000 fee does not apply to existing H-1B employees and beneficiaries, petitions filed prior to September 21, 2025, and extensions or renewals filed for existing H-1B employees.
2. Applicability to certain scenarios unclear: It remains unclear whether the fee applies to certain cases:
   1. “Transfer” cases in which an H-1B employee changes employers after September 21, 2025. However, the language of the Proclamation and certain language in the USCIS/CBP guidance present a strong legal argument that such cases should NOT incur the new fee.
   2. F-1 cases in which students in the United States (a) file cap-subject H-1B petitions after September 21, 2025, (b) file such petitions while in the United States, and (c) do not depart the United States, even after petition approval to obtain an H-1B visa at a U.S. consulate. For cases meeting these criteria, the USCIS/CBP guidance appear to indicate that USCIS will require the new fee for H-1B lottery petitions in 2026 that meet these criteria.

Key Takeaways – Related Agency Action

1. The Department of Labor announced Project Firewall, a new H-1B employer compliance enforcement initiative.
2. USCIS proposed a rule overhauling the selection process for capped H-1B programs to prioritize higher-paid applicants, but the impact of this change depends, in part, on whether the new payment reduces the number of new H-1B petitions.
3. The Department of Labor will also revise prevailing wage levels used in the H-1B program.
4. The Department of State will issue guidance aimed at preventing H-1B visa misuse.

The Proclamation

The H-1B program allows U.S. employers to temporarily hire foreign nationals to perform services in specialty occupations as defined by Section 214(i)(1) of the Immigration and Nationality Act. Specialty occupations require at least a bachelor’s degree in fields related to the specialty such as technology, engineering, healthcare, law, or architecture.

Section 1(a) of Proclamation 10973 restricts the entry of individuals in H-1B status to the United States unless their employer’s H-1B petition was filed (or supplemented) with a $100,000 payment, with limited exceptions that can be granted for individuals, groups, or countries whose employment is deemed not to threaten U.S. security or welfare. Section 1(b) of the Proclamation restricts USCIS from approving H-1B petitions for persons “who are currently outside the United States” unless the petition is accompanied by a $100,000 payment.

The Proclamation applies prospectively to petitions filed on or after 12:01 a.m. ET, September 21, 2025. Based on the USCIS/CBP guidance, the Proclamation does not affect individuals who are beneficiaries of petitions filed before the effective date, nor those who already hold valid H-1B visas. Importantly, the Proclamation does not restrict the ability of current H-1B visa holders to travel to and from the United States. The Proclamation will remain in effect for 12 months, but may be extended.

Several aspects of the Proclamation remain ambiguous:

• Covered Petitions: It is not clear whether the fee applies to:

  (1) new H-1B petitions field by cap-exempt employers,

  (2) “transfer” cases where an H-1B employee changes H-1B employers after September 21, 2025 (while the new employer does technically have to file a “new” H-1B petition, it is being filed on behalf of an individual who is already a beneficiary of an approved H-1B petition filed by a different employer), or

  (3) cases in which persons in the United States (such as F-1 or J-1 students) are beneficiaries of cap-subject H-1B petitions after September 21, 2025 (as opposed to beneficiaries of cap-subject H-1B petitions who are outside the United States at the time of H-1B petition filing, who are explicitly noted as being subject to the restrictions in section 1(b) of the Proclamation. 

As for (1) and (3), we believe that USCIS likely will take the position that the fee applies for new H-1B petitions filed after September 21, 2025, but for (2) we assess that such employers should be exempt from the new fee given the language of the Proclamation and USCIS/CBP guidance (hopefully, updated USCIS guidance will confirm this point in the near future).

• Process for National Interest Exemption: The Proclamation grants the Department of Homeland Security (DHS) discretion to designate exemptions for national interest, but does not outline standards or procedures for such designation.

In addition, given the fee’s novelty and potential economic impact, it may be challenged on constitutional and administrative law grounds.

Agency Actions

The Proclamation also directs certain agencies to take follow-up actions to implement the Proclamation. It directs DHS to commence rulemaking to prioritize H-1B petitions for higher-wage workers, the Department of Labor to revise prevailing wage levels used in the H-1B program, and the State Department to issue guidance as necessary to prevent misuse of visas by H-1B beneficiaries whose employment start dates occur prior to October 1, 2026.

In the first of these agency actions, USCIS published an NPRM in the Federal Register on September 24, 2025 that, if enacted, would overhaul the selection process for H-1B programs involving employers not exempt from the annual cap/quota. The proposed system would apply to both the regular H-1B program, which has a cap of 65,000 beneficiaries, and the advanced degree H-1B program, which has a cap of 20,000 beneficiaries.

The NPRM proposes replacing the existing random lottery with a weighted system in which petitions offering higher wages would receive more entries in the selection pool, effectively increasing the odds that such an individual will be selected through the lottery such that an H-1B petition could be submitted by their employer. Specifically, beneficiaries would be assigned to one of four wage levels based on Department of Labor survey data, with the highest-wage (level IV) beneficiaries receiving four entries and the lowest-wage (level I) beneficiaries receiving one entry. USCIS estimates that petitions using wage level IV would have an approximately 61.2 percent probability of being selected in the lottery (an increase in probability of over 100 percent), whereas petitions using wage level I would have an approximately 15.3 percent probability of being selected (a decrease in probability of roughly 50 percent). To be sure, USCIS is considering alternative wage-weighting methods and may revise the number of entries or data inputs before finalizing.

Comments are due on October 24, 2025, and USCIS will likely have sufficient time to issue a final rule before the next H-1B lottery in March 2026.

The impact of the NPRM will depend on several developments:

• Rulemaking changes: The NPRM invites comments on alternatives to the proposed weighted selection process, among other issues, so the final rule could differ from the proposed rule.
• Legal Risks: Some contend the weighting approach conflicts with the Immigration and Nationality Act’s requirement to process petitions in the order received, which could be the subject of legal challenges to the proposed weighting system.
• Reduced Lottery Pressure: If the new $100,000 fee substantially decreases overall filings, the practical impact of weighted selection may be reduced.

On September 19, 2025, in concert with the Proclamation and other administrative action, the Department of Labor launched Project Firewall, a new enforcement initiative focused on increasing oversight of H-1B employer compliance. Project Firewall investigations may be initiated through traditional enforcement channels through a new mechanism in which the Secretary of Labor has certified that “reasonable cause” exists to believe an employer is non-compliant. As was the case before the initiation of the Project, employers found to have violated H1-B regulations could incur civil monetary penalties, have to pay back wages to affected workers, or face temporary debarment from participation in the H-1B program.

Conclusion

These H-1B developments, including a significant and unprecedented fee for certain H-1B petitions, enhanced measures to enforce regulatory compliance, and potential revisions to the lottery systems and wage standards appear to mark the start of a material shift in the H-1B system, although there remain ambiguities about the scope and application of these executive actions.

Authored by Meghan Anand, Ashley E. Roberts, and Aleksandar Dukic.