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Only yesterday afternoon, the President issued a proclamation restricting the entry or reentry of anyone with H-1B status without proof of payment of a new $100,000 fees of 12:01 a.m. Sunday, September 21. There are no details yet and some contradictory language, and we will need to wait for clarity. For example, there are no details on how someone is supposed to pay the fee, whether it applies to H-4 dependents (but we suspect it does), and who might qualify for the exception that is included in the proclamation if DHS determines that it is in the U.S. national interest.
What to do if you hold H-1B/H-4 status?
- If you are outside the United States with H-1B status: H-1B visa holders who are outside of the United States need to return today, September 20, before midnight. If they cannot do this, they should remain outside of the United States and wait for further instructions as we get more details and clarification on how this will be implemented.
- If you are inside the United States with H-1B status: Right now, the ban seems to apply only to those outside the United States seeking entry or reentry in H-1B status. It is not known yet whether it will apply to those in H-1B status who depart after September 21. Therefore, no one who holds H-1B status and is in the United States should travel abroad until further clarification.
How does this affect employers filing H-1B petitions?
- USCIS shall not adjudicate petitions unless they are accompanied by proof of payment of the $100,000 fee for H-1B workers who are currently outside of the United States.
- The proclamation is silent on H-1B petitions filed for foreign nationals inside the United States – whether extensions, change of status or amended petitions. For now, we assume that these are not covered.
Other provisions of the proclamation include:
- Within 30 days of the March 2026 lottery, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall jointly submit a recommendation to the President as to whether to renew or extend the restriction on reentry is in the best interest of the United States.
- The Secretary of State shall issue guidance to prevent the misuse of B visas by beneficiaries of H-1B petitions who have start dates prior to 10/1/2026 – presumably to prevent them from entering and filing for a change of status (and thereby avoiding the $100,000 fee).
- The Secretary of Labor shall initiate rulemaking to revise the prevailing wage levels and to prioritize the admission of highly skilled and high-paid nonimmigrants.
It is expected that lawsuits against this proclamation will be filed very soon and will likely ask for an emergency stay so that this proclamation is not implemented. We will let you know as soon as possible if and when this happens, thereby allowing H-1Bs to enter the United States again.
T&R will provide continual updates on the status of the implementation of this proclamation.
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