Cavitch Familo & Durkin Co., L.P.A. attorney Max Dehn is a co-author of this article.
On September 19, 2025, President Trump “signed a Proclamation to restrict the entry into the United States of certain H-1B aliens as nonimmigrant workers, requiring a $100,000 payment to accompany or supplement H-1B petitions for new applications to curb abuses that displace U.S. workers and undermine national security.”[1] The announcement came as a surprise to most and has caused considerable confusion amongst individuals and businesses who rely on the H-1B visa to recruit talent from abroad.
The H-1B visa allows U.S. employers to hire foreign workers in specialty occupations – those requiring a bachelor’s degree or higher.[2] Commonly, the H-1B visa has been used heavily by tech and STEM related businesses who rely on employees born or educated abroad. The visa is typically valid for an initial period of three years and can be extended for a maximum of six years. The H-1B is popular as applications regularly exceed the annual cap of 85,000 visas. For FY 2026, which took registrations from March 7 to March 24, 2025, 358,737 registrations were filed.[3]
The New Fee
The H-1B application process begins with the Registration, whereby an employer submits basic information about an applicant to enter them into the H-1B lottery. Each applicant has an equal chance of being selected in the lottery.[4] If an applicant’s registration is selected in the lottery, the application will proceed to the Petition stage, requiring the applicant to submit further details and now, the payment of a $100,000 fee for USCIS to process the applicant’s petition. After applicants and their representatives have been notified of their selection on March 31, they will have until the end of June of the same year to file their petition.
The new $100,000 fee for H-1B visa took effect on September 21, 2025, and will only apply to new H-1B visa petitions. Those renewing H-1B visas or applications from current H-1B visa holders are excluded from the new fees.[5] The White House has clarified that the new fee will be a one-time fee imposed on new visa petitions, and it will not be an annual fee. However, since the applicant cap for H-1B visa has already been reached for the fiscal year, which ends on September 30, 2025, applicants who have already filed this fiscal year will be exempt from the new fees, and next year’s applicant will be the first to be subject to the fee hike.[6]
Anticipated Problems
However, the implementation of this new procedure has caused confusion and challenges to its enforceability are likely. Primarily, the new $100,000 fee will apply at the Petition stage, therefore, businesses can still register for the H-1B visa but will have to rethink proceeding to the petition stage of visa process. This will disproportionately impact smaller companies, startups, and non-profits who are working with more modest budgets. On top of the fee, the new policy also directs the Department of Labor to raise prevailing wage levels, increasing the cost of a visa petition but also the ongoing operational cost of employing a foreign worker.[7]
There is significant lack of clarity left on key topics. Particularly, the Proclamation announced a “national interest” exemption, which states that the $100,000 fee will not apply to some workers, companies, and even entire industries if they are deemed to support the “national interest” and are adjudged not to pose a threat to the security or welfare of the US.[8] For now it is unclear how the exemption is received or adjudicated.
Furthermore, there will be legal challenges. The President has derived authority to set visa fees from the Immigration and Nationality Act, which lets a President restrict entry of foreign workers to protect national security.[9] Likewise, the Proclamation implicates the major questions doctrine, a principle of Constitutional law providing that assertions of authority from an administrative agency involving economically significant actions must be clearly authorized by Congress.[10] Although these challenges will impact the new fee provision, U.S. business must prepare themselves for the immediate implementation that this Proclamation will exact.
Potential Alternatives
The prohibitive effect on smaller businesses petitioning for an H-1B visa have led some to look for alternative routes for brining talented foreign workers into the U.S. First, is the L-1 Visa which allows for the transfer of a manager, executive, or employee with specialized knowledge from a foreign office to a U.S. office. However, the L-1 visa requires a qualifying relationship with a foreign office and at least one year of prior employment abroad, limiting its use for new hires.[11] Second is the O-1 visa which is intended for individuals with extraordinary ability or achievement. The O-1 visa has high evidentiary thresholds and is only accessible to a very specific pool of candidates.[12]
Conclusion
The provision of the new $100,000 fee on filing of H-1B visas marks a major shift in the U.S. recruitment of foreign labor. Businesses and other entities now face difficult decisions in the two-month petition stage on whether to proceed with an applicant’s H-1B visa given the nearly ten-fold increase in associated fees. The implementation of the new fee and any potential exemptions for certain industries will require ongoing analysis. Please contact the authors or any of the business attorneys at Cavitch for any advice or questions you may have.
[1] The White House, Fact Sheet: President Donald J. Trump Suspends the Entry of Certain Alien Nonimmigrant Workers, Sept. 19, 2025, https://www.whitehouse.gov/fact-sheets/2025/09/fact-sheet-president-donald-j-trump-suspends-the-entry-of-certain-alien-nonimmigrant-workers/
[2] Shilpa Malik and Sabrina Saada, H-1B Cap 2025-2026: Complete Guide on Process, Timelines, Registration, Fees, H-1B Visa, Sept. 26, 2025, VisaNation, https://www.immi-usa.com/h1b-visa-2018-cap/ (accessed Sept. 26, 2025).
[3] U.S. Citizenship and Immigration Services, H-1B Electronic Registration Process, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations/h-1b-electronic-registration-process (accessed Sept. 29, 2025).
[4] However, the new Proclamation also announced additional reforms to the lottery process, including a weighted system prioritizing high-skilled, high-paid applicants over those at lower-wage levels. U.S. Citizenship and Immigration Services, H-1B FAQ, (updated Sept. 21, 2025) https://www.uscis.gov/newsroom/alerts/h-1b-faq (accessed Oct. 6, 2025).
[5] Aimee Picchi and Mary Cunningham, Here’s what immigration attorneys say about Trump’s $100,000 H-1B fee, CBS, Sept. 23, 2025 11:09 AM EDT, https://www.cbsnews.com/news/trump-h1b-visa-faq-100000-fee-uscis/.
[6] Id.
[7] The White House, supra note 1.
[8] Id.
[9] The Editorial Board, The $100,000 H-1B Visa Mistake, Wall St. J., Sept. 25, 2025 6:04 PM EDT, https://www.wsj.com/opinion/donald-trump-h-1b-visa-fees-legal-immigration-jobs-0d9c4194.
[10] Congress.gov, The Major Questions Doctrine, Library of Congress (2025), https://www.congress.gov/crs-product/IF12077
[11] Malik supra note 2.
[12] Id.