The September 2025 Presidential Proclamation announcing a $100,000 payment requirement for certain H-1B petitions shocked employers and foreign workers alike. People are asking, “Is this fee legally valid? Can a President or federal agency impose such a drastic increase without going through the normal rulemaking process?”
The short answer: while proclamations can shape immigration policy in the short term, lasting fee increases must go through the formal procedures of the Administrative Procedure Act (APA), including publication in the Federal Register and a public comment period.
Presidential Proclamations vs. Federal Regulations
A Presidential Proclamation, like the one issued in September, can take effect immediately to restrict visa issuance or entry at U.S. borders. That’s why the $100,000 H-1B requirement was framed as an entry condition rather than a routine filing fee.
However, the authority to set and adjust immigration filing fees generally rests with U.S. Citizenship and Immigration Services (USCIS), under rules that must be published and finalized according to the APA. That process ensures transparency, legal consistency, and an opportunity for the public to weigh in.
The Administrative Procedure Act: How Fees Are Normally Set
The APA requires federal agencies to follow a structured process before changing regulations, including immigration fees. The steps are:
- Notice of Proposed Rulemaking (NPRM): USCIS would publish a proposal in the Federal Register explaining the new fee structure, its legal justification, and supporting data.
- Public Comment Period: Stakeholders (including employers, trade groups, advocacy organizations, and the general public) would have at least 30–60 days to submit feedback.
- Agency Review: USCIS must review the comments, address major concerns, and revise the proposal as necessary.
- Final Rule Publication: A final rule would be published in the Federal Register, with an effective date typically at least 30 days later.
- Judicial Review: Even after a rule is finalized, courts can review whether the agency complied with the APA and whether the fee increase is consistent with the law.
Why This Matters
The $100,000 H-1B fee, as announced in the proclamation, may be vulnerable to legal challenges if it bypasses the APA. Unless USCIS follows the formal rulemaking process, it is unlikely that such a fee could become a permanent part of the immigration system.
Rosanna Berardi, Esq., Managing Partner of Berardi Immigration Law, notes:
“Executive actions can change the landscape quickly, but they are not the same as formal rulemaking. Employers should be aware of the distinction, what is immediate policy versus what is a durable, legally binding regulation.”
What Employers and Applicants Should Know Now
- Immediate impact: For now, the proclamation functions as a temporary entry restriction, not a permanent USCIS filing fee.
- Uncertainty ahead: Courts or Congress could weigh in, and future administrations could revoke or replace the proclamation.
- Long-term fees: If USCIS wants to formalize the $100,000 requirement, it must publish a rule, invite public comments, and withstand legal scrutiny.
- Strategic planning: Employers should prepare for short-term disruption but recognize that the long-term fee landscape may look very different.
FAQs on Immigration Fees and the APA
Can the President raise USCIS filing fees directly?
No. USCIS filing fees are generally set through agency rulemaking under the APA. A President can restrict entry conditions by proclamation, but cannot bypass statutory and regulatory procedures to permanently increase fees.
How long does the APA process take?
Typically six months to a year, or longer. Publishing a proposed rule, collecting and reviewing comments, and finalizing the regulation is a deliberate process designed to keep the utmost transparency.
Could lawsuits block the $100,000 H-1B fee?
Yes. Courts could find that the proclamation oversteps executive authority or conflicts with existing statutes. Lawsuits are a near certainty if the government attempts to enforce such a large fee without APA compliance.
H-1B Fee Takeaways
The $100,000 H-1B fee made headlines, but its legal footing is shaky without APA rulemaking. Employers should distinguish between what is enforceable immediately at the border and what can stand the test of time under federal law.
As Rosanna Berardi emphasizes, “The most important thing is to separate political headlines from legal reality. Businesses need clear, predictable rules and not sudden proclamations that may not survive legal challenge.”
At Berardi Immigration Law, we are monitoring these developments closely. If your company relies on H-1B workers, now is the time to review your hiring strategies, budget planning, and compliance practices. Our team can help you navigate both the short-term proclamation and the long-term regulatory landscape.
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