2025 H-1B Proclamation: Clarifications and Continued Questions

On September 19, 2025, the White House published a Presidential Proclamation titled “Restriction on Entry of Certain Nonimmigrant Workers.” The proclamation restricts entry of H-1B nonimmigrants unless the employer’s petition is “accompanied or supplemented by a $100,000 payment.” It also directs DHS (U.S. Department of Homeland Security) and DOS (U.S. Department of State) to implement the policy.

USCIS (U.S. Citizenship and Immigration Services) circulated guidance stating that the Proclamation will apply prospectively only to H-1B employment-based petitions filed on or after 12:01 a.m. ET on Sept. 21, 2025.

USCIS’ memo further states the Proclamation does not apply to:

• beneficiaries of petitions filed before the effective time,
• beneficiaries of currently approved petitions, and
• individuals holding valid H-1B visas, including those who travel and re-enter.

Press statements from the White House echoed these limits, emphasizing that existing H-1B holders and renewals are not subject to the charge, and that travel/re-entry for current visa holders is not impacted. The Proclamation itself did not spell out these carve-outs – this comes from implementation guidance and official statements.

Public/National-Interest Exception: Individual, Company, or Even Industry-Wide

The Proclamation preserves a public interest (national interest) exception and authorizes DHS to exempt individuals, specific employers, or entire industries where warranted. There is currently no guidance on how DHS and DOS will operationalize this or what criteria and evidence it will include or whether there will be a formalized process.

Can this framework stand without regulation?

Parts of the framework are likely vulnerable without rulemaking.

Section 212(f) plainly allows the President to restrict the entry of classes of noncitizens; using it to declare “no entry unless a specified condition is met” is familiar territory. The difficulty arises when that entry restriction functions as a de facto $100,000 payment requirement tethered to petition filings. That moves from border authority into fee-setting and benefit-adjudication – areas Congress has addressed by statute and that agencies typically implement through notice-and-comment rulemaking and formal fee schedules.

Questions remain over whether the Proclamation, and any implementing guidance, exceeds §212(f) and circumvents the Administrative Procedure Act and fee statutes. Stakeholder requests for temporary restraining orders or preliminary injunctions are imminent.

Durable changes to petition requirements or the creation of new collection mechanisms usually require regulatory action. Until DHS and DOS publish formal procedures explaining how payments and any exemptions will work, courts may deem the Proclamation procedurally defective.

Employee Preparation and Immediate Steps:

First, if an H-1B petition was filed before 12:01 a.m. ET on September 21, current USCIS guidance indicates the Proclamation does not apply to that case.

Approach travel carefully and speak with an attorney beforehand.

For petitions filed on or after the effective time, plan on the $100,000 payment or prepare a national-interest strategy. Document factors such as critical infrastructure roles, healthcare needs, unique expertise, the unavailability of U.S. workers, and concrete economic harm from delays, so you are ready to file once DHS and DOS announce a process.

We will be closely monitoring for further updates and guidance.

About Our Author

Mary Kate Fernandez focuses her practice exclusively on business immigration, representing employers across a range of industries. With experience guiding clients through U.S. immigration regulations, she helps businesses sponsor and retain skilled talent from around the world. She also assists employers in addressing a wide range of employment issues related to immigration and international employment, ensuring they remain compliant with regulations. Fernandez has established contacts and experience liaising with the Department of Labor (DOL), U.S. Citizenship and Immigration Services (USCIS), U.S. Coast Guard (USCG), Department of State (DOS), and U.S. consulates worldwide. This network enables her to guide clients effectively through regulatory requirements across different jurisdictions.