Barely three days removed from a Presidential executive order focused directly on the H-1B program, some clarity has been established while other items remain murky. Examine what has occurred, what has been resolved and what remains a mystery since the announcement on Friday.
What Happened
A new Presidential Proclamation restricts entry of certain H-1B workers unless a $100,000 payment accompanies the petition or a National Interest Exception (NIE) applies. Subsequent agency (USCIS and CBP) guidance clarifies that existing H-1B holders and already-filed or approved petitions are not impacted; the change is prospective and will apply to new petitions filed after Sept. 21, 2025 (including the March 2026 filings for the cap lottery). The Proclamation is effective for 12 months from Sept. 21, 2025, with potential extension. It also directs the Department of Labor (DOL) and the Department of Homeland Security (DHS) to pursue rulemakings: DOL to revise prevailing wage levels and DHS to prioritize high-skill/high-pay in the H-1B selection process.
What Agencies and the White House Have Clarified
Prospective only. USCIS guidance states the Proclamation applies only to petitions filed after 12:01 a.m. EDT on Sept. 21, 2025. It does not apply to beneficiaries of petitions filed before that time (and not yet adjudicated), to currently approved petitions, or to those holding valid H-1B visas.
Next year’s lottery is included. USCIS’ public FAQ confirms the requirement includes the FY2027 (filed March 2026) cap lottery and other new H-1B petitions submitted after the effective date.
Not an annual fee. The White House Press Secretary emphasized the payment is a one-time fee tied to the petition, not an annual charge; USCIS’ FAQ similarly notes the fee does not apply to renewals.
Travel by current visa holders. USCIS added that the Proclamation does not impact the ability of current H-1B visa holders to travel to or from the United States.
CBP alignment. USCIS’ FAQ links to CBP guidance indicating alignment with the USCIS interpretation.
What Remains Unclear
While the direction for travel is clearer, several operational and legal questions remain:
Change-of-status filings (inside the U.S.). Will COS petitions filed after Sept. 21, 2025, also require payment? USCIS/CBP have not explicitly addressed this scenario in public postings.
Interaction with Common Case Types.
- Are amendments, transfers, or portability filings treated as “new petitions” for payment purposes?
- How do cap-exempt institutions (e.g., universities/nonprofits) fit into the framework?
- Does premium processing change timing/verification?
Downstream Family & Employment Effects.
- Impact on H-4 dependents and EADs?
- Interplay with PERM/I-140 timing and cap-gap situations?
Payment mechanics. Which agency collects the fee, how is it remitted (and at what filing stage), and how are refunds handled upon withdrawal/denial? (Procedures not yet published.)
NIE implementation. What are the criteria, documentation standards, decision makers, and timelines for NIEs? (Only high-level authority exists now.)
Litigation risk: Legal challenges could seek to stay or narrow the Proclamation; outcomes may affect timing and scope. (Press coverage indicates expectation of lawsuits; none concluded yet.)
What to Watch For Next
- DOL rulemaking to revise/raise prevailing wage levels.
- DHS rulemaking to prioritize high-skill/high-pay in selections.
- Formal CBP/State implementation details (consular posts, ports of entry).
Same-Day DOL Action: “Project Firewall” and the H-1B Compliance Landscape
On Sept. 19, 2025, the U.S. Department of Labor announced Project Firewall, an H-1B enforcement initiative aimed at protecting wages and job opportunities for U.S. workers and holding employers accountable for program abuse. Key elements include: (i) Secretary-certified H-1B investigations where “reasonable cause” exists, a first-ever use of this authority; (ii) potential back-wage recovery, civil money penalties, and debarment; and (iii) formal information-sharing and coordination with the DOJ Civil Rights Division, EEOC, and USCIS to align enforcement across agencies. Employers are directed to WHD compliance resources for guidance.
Why this matters alongside the Proclamation
- Policy environment: While the Presidential Proclamation makes future H-1B filings more costly at the point of petition, Project Firewall intensifies after-the-fact enforcement of existing H-1B obligations (LCA wages, working conditions, recordkeeping). Together, they raise H-1B costs at the front-end (new filings) and back-end (audits/penalties).
- Practical realities for H-1B holders: For individuals already in valid status, DOL’s move underscores that wage and workplace protections remain in force and may see more active oversight. For employers, expect heightened scrutiny of vendors, third-party placements, and wage-level attestations.
Key Sources
- White House Proclamation (text): “Restriction on Entry of Certain Nonimmigrant Workers,” Sept. 19, 2025.
- USCIS internal memo (guidance): scope/prospectivity/travel clarification, Sept. 20, 2025 (PDF).
- USCIS H-1B FAQ (public): prospective application; includes 2026 lottery; notes CBP guidance.
- White House Press Secretary statement (X): one-time, petition-based payment; current holders/renewals unaffected.
- CBP guidance: agency alignment referenced by USCIS.
- DOL Project Firewall News Release: heightened H-1B compliance
How We Will Continue to Update You
Green Card Fund will monitor USCIS, CBP, and State updates and the DOL/DHS rulemakings referenced in the Proclamation. We will update our blog and our investor briefings as soon as additional official guidance is released.
