This administration’s effort to usurp Congressional authority pivoted from trade to immigration policy late Friday, September 19, 2025. The President issued a presidential proclamation restricting the entry of any H-1B beneficiary unless their employer pays a $100,000 fee for the sponsored employee. The proclamation is set to take effect at 12:01 am ET on Sunday, September 21, 2025 and remain in place for, at least, the coming 12 months.
The proclamation was issued after and takes effect while federal courts are closed. Of course, in cases of irreparable harm, procedures exist to allow emergency filings. We expect such a filing shortly.
Alongside the proclamation, the White House issued a “fact” sheet. This is where one would normally find the implementing authority or specific instructions for the tens of thousands whose companies and livelihoods will be harmed this weekend. No such luck. So, even if the proclamation survives a weekend injunction, it baffles stakeholders as to how and to whom one would pay the $100,000 fee. One certainty is that the proclamation would remain in place for at least the coming 12 months.
Potential Exemptions
Section 1(c) provides the Department of Homeland Security (DHS) with discretion to waive the fee requirement. The exercise of discretion appears limited to those foreign national workers whose employment DHS determines to be in the national interest and who do not pose a threat to the security or welfare of the United States. Neither the proclamation nor the “fact” sheet define the bolded terms, nor are details offered regarding any guardrails or timelines on DHS’s exercise of such discretion.
Restrictions on Business Visitor Entries
Section 1(b) directs the Secretary of State, who exercises plenary authority over U.S. Consulates, to issue guidance on preventing misuse of B visas by H-1B beneficiaries with an employment start date beginning prior to October 1, 2026. This appears to be a direct effort to prevent this fiscal year’s cadre of previously approved H-1B workers from setting foot stateside until their employers pay an ex post facto fee.
Revision of Prevailing Wage Levels
Section 4 directs the Secretary of Labor to initiate a rulemaking to revise the prevailing wage levels to levels consistent with the policy goals of this proclamation consistent with 8 U.S.C. 1182(n). It is unclear how the prevailing wage levels may be revised to be “consistent” with the policy goals of the proclamation. Prevailing wage levels are determined through a review of the appropriate occupational classification, metropolitan statistical area of the intended work location, employer-specific requirements, and levels of experience, education, and skill. Prevailing wages are exactly that, wages that prevail among certain occupations in certain locations. The federal government does a great job of publishing occupational surveys annually with updates to prevailing wages on a national, regional and metropolitan level for every occupational grouping.
Constitutional Authority Lacking; Violative of APA
While the executive and his agencies have some discretionary power to impose application fees related to immigration processes, these must comply with the Immigration and Nationality Act (INA) and typically require formal rulemaking or Congressional authorization. The INA gives Congress the authority to set the fees related to immigration processes or to delegate such authority to DHS to set fees within certain parameters. It should be evident to all that Congress would need to pass a law to authorize a new fee structure, particularly one as substantial as $100,000. Indeed, any significant fee increase would likely require new legislation or authority granted by Congress.
Assuming arguendo that a substantial fee change was within the discretion of DHS, the agency would be required to go through the rulemaking process as outlined in the Administrative Procedures Act (APA), 5 U.S.C. §§ 551–559. This includes proposing the rule, seeking public comments, and finalizing the rule. The APA ensures that new regulations (including fees) go through transparency, public input, and a structured legal framework. Imposing such a substantial fee without following this process would be violative of the APA.
During Trump’s first administration, similar efforts to increase certain fees associated with the H-1B visa program and prevailing wage levels failed. On December 1, 2020, Judge Jeffrey S. White of the U.S. District Court for the Northern District of California vacated two interim final rules announced in October 2020 by the Department of Homeland Security (DHS) and the Department of Labor (DOL). The court determined the rules were improperly issued without following proper notice-and-comment procedures required under the Administrative Procedure Act. We expect similar outcomes again.
Guidance for Those Immediately Impacted
The apparent intent of proclamation is to sow chaos and panic among stakeholders. Resist the urge to succumb. First, endeavor to obtain counsel from your immigration attorney prior to travel. Second, keep in mind that neither CBP nor USCIS are likely to promulgate operational guidance by the effective date of the proclamation. Third, for those folks who have both an approved H-1B petition and a valid H-1B visa, make an effort to return to the United States before 12:01am EDT on Sunday, September 21, 2025. An “entry” under immigration law may be effected outside the United States if one is availing themselves of a Pre-Flight Inspection which is available at most larger Canadian airports, including Vancouver, Montreal, and Toronto as well as those in Ireland, specifically at Dublin and Shannon airports. This will allow them to have a registered “entry” prior to boarding the U.S.-bound flight. To those who are unable to timely arrange or rearrange their itineraries, it may be prudent to postpone your entry following the conclusion of any upcoming litigation.