Legal Update: H-1B Entry Restrictions Pursuant to September 19 Executive Order – Evolving Guidance

On September 19, 2025, the White House issued a Presidential Proclamation imposing significant new restrictions on the admission of H-1B specialty occupation workers. The order required a $100,000 payment for each H-1B petition, effective at 12:00 a.m. EDT on September 21, 2025, and directed agencies to verify compliance before approving petitions or visas. The measure was broadly written without distinguishing between different types of H-1B filings, and as drafted, appeared to immediately impact all foreign nationals outside the United States with H-1B approvals. Limited national interest exemptions were referenced, but no further details were provided.

This announcement created immediate uncertainty for employers and H-1B employees, particularly regarding travel and reentry. Our initial guidance was to avoid international travel and, for those abroad, to make every effort to enter the United States before the effective date. The impact on cross-border commuters remained unclear, and litigation was anticipated.

Government Clarifications Issued September 20, 2025

Within 24 hours, both USCIS and CBP issued statements that substantially narrowed the scope of the EO:

• USCIS clarified that beneficiaries of currently approved petitions and those holding valid H-1B visas are not affected. The EO applies only prospectively to H-1B petitions that have not yet been filed.
• CBP confirmed that the EO does not impact the ability of current visa holders to travel to or from the United States. Processing for existing H-1B visa holders will continue under current policies.

As of the date of this client alert (September 22), it appears that current H-1B visa holders and beneficiaries of approved petitions are not subject to the new restrictions or payment requirement, and may continue to travel and work under existing policies. However, new H-1B petitions filed after the effective date remain subject to the Executive Order, and further guidance is still anticipated.

Ongoing Concerns and Unresolved Issues

While agency statements provide welcome relief for many H-1B workers and employers, they do not fully resolve the technical ambiguities created by the original EO.

• It is unclear whether extensions, amendments, or changes of employer will trigger the new fee. While agency statements allude to the EO being applied toward next year’s annual CAP lottery for “new” filings, they do not explicitly address how these other common H-1B actions will be treated under the Executive Order.
• Cap-exempt institutions are not explicitly excluded from the payment requirement. Universities and nonprofit organizations remain uncertain about their obligations, as agency guidance currently treats their H-1B petitions as “new” filings subject to the Executive Order. While recent statements suggest the EO will apply to next year’s annual cap lottery for new filings, neither the language of the EO nor agency communications clearly exclude cap-exempt filings, which can occur throughout the year outside of the lottery process.
• Criteria and procedures for national interest exemptions have not been established. Employers and beneficiaries do not yet know how to apply for exemptions or what standards will be used.
• The impact of the new payment on existing H-1B fees, wage rules, and future filings remains unresolved. Employers should anticipate changes to overall costs, compliance requirements, and eligibility – especially for next year’s H-1B lottery.
• The process for collecting and verifying the $100,000 payment remains undefined. Employers still lack guidance on which agency will collect the fee, how payment should be made, and what constitutes sufficient proof. There is no information on whether the fee will be returned if a petition is denied, withdrawn, or unused.
• Responsibility for payment remains with employers, but further clarification may be forthcoming. Current regulations prohibit employees from covering petition fees, but the new requirement could prompt additional guidance.
• No specific nationality-based exemptions have been provided for cross-border commuters. This means that the EO appears to apply to H-1B beneficiaries who reside outside the U.S. and travel in daily for work, including Canadians and Mexicans.
• Prevailing wage and prioritization directives are expected to reshape the H-1B and PERM programs. The Executive Order directs the Department of Labor to raise prevailing wage levels and prioritize higher-skilled, higher-paid workers, which could significantly increase employer costs and alter eligibility criteria for both H-1B and PERM sponsorship.

There remain inconsistencies between agency guidance and the language of the Proclamation, and further clarification is expected.

Broader Impact: Big Tech, Third-Party Firms, and Cap-Exempt Employers Caught in the Crosshairs

The Executive Order’s directive aims to tighten oversight of the H-1B program, particularly targeting third-party placement and IT outsourcing companies that assign workers to client sites. Big tech firms, including Amazon, Microsoft, Meta, Apple and Google, also stand to be affected as they rely on H-1B talent for specialized roles and innovation.

However, the impact extends beyond these sectors: smaller H-1B petitioners and cap-exempt employers, such as universities, nonprofit research institutions, and healthcare systems, are also at risk. These organizations often file H-1B petitions outside the annual lottery and will struggle to absorb the financial burden, potentially jeopardizing critical services and research. The lack of clear exemptions for cap-exempt filings leaves these groups facing the same uncertainty and disruption as larger tech companies.

Conclusion

While the immediate threat to current H-1B visa holders appears to have been mitigated, significant uncertainty remains regarding the implementation and scope of the Executive Order. Employers should consult with counsel and prepare for both short-term disruptions and long-term changes to the H-1B program. Our office will continue to monitor developments and provide updates as new information becomes available.

If you have specific questions regarding the impact of these changes on your organization or employees, please contact our office for individualized advice.