Labor & Employment Law Daily Wrap Up, IMMIGRATION NEWS—USCIS revises $100K H-1B fee to exclude certain workers already in the U.S., (Oct 21, 2025)

By Patricia K. Ruiz, J.D.

The update does not rescind the proclamation or the $100,000 fee for other workers.

An update to the website of U.S. Citizenship and Immigration Services (USCIS) reflects that, in general, the $100,000 fee on new H-1B visa applications, imposed under a Trump administration proclamation in September, may not apply to individuals already in the U.S. when changing from certain immigration statuses to H-1B. The change follows the filing of a lawsuit by a coalition of plaintiffs arguing that the proclamation and subsequent actions exceed the president’s Constitutional authority and contravened the statutory H-1B process and program.

Proclamation. On September 19, 2025, President Trump issued a proclamation restricting entry into the U.S. of workers on H-1B visas, conditioning their entry on employers making a $100,000 payment to the federal government. The proclamation states, “Entry into the United States of [H-1B workers] is restricted, except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000.” The proclamation directs DHS to “restrict decisions on petitions not accompanied by a $100,000 payment,” and directs State to “approve only those visa petitions for which the filing employer has made the [$100,000] payment.” Under the proclamation, DHS and State must “deny entry to the United States to any H-1B nonimmigrant” whose employer has not made the $100,000 payment. The proclamation made the new requirements effective as of 12:01 a.m. ET on September 21, 2025.

The proclamation does not specify to which agency the payment should be made, how it should be paid, where it will be deposited, or how it will be used. While the USCIS, the Department of State, and CBP issued statements collectively stating that the agencies’ policies limit the $100,000 requirement to new petitions and carve out renewals, the new policies do not differentiate between petitions for workers who are outside the U.S. and those for workers already inside the U.S., seemingly expanding the proclamation’s “entry” ban to include individuals who have already entered the country (see Employment Law Daily, October 6, 2025).

Lawsuit. Global Nurse Force, a health care business helping hospitals across the country fill critical vacancies with qualified nurses from abroad, along with other plaintiffs, including schools, religious organizations, labor unions, and workers, brought a lawsuit against President Donald Trump, the U.S. Department of Homeland Security, and its subagencies USCIS and Customs and Border Protection (CBP), and the Department of State, as well as the heads of these agencies, challenging the legality and implementation of the proclamation. The plaintiffs seek declaratory and injunctive relief, arguing that the proclamation and subsequent actions exceed the president’s Constitutional authority and contravened the statutory H-1B process and program.

USCIS guidance. Two weeks after the plaintiff coalition filed its lawsuit, USCIS updated its website to reflect that, in general, the $100,000 fee may not apply to individuals already in the U.S. when changing from certain immigration statuses to H-1B. Specifically, the website states: “The Proclamation also does not apply to a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, that is requesting an amendment, change of status, or extension of stay for an alien inside the United States where the alien is granted such amendment, change, or extension. Further, an alien beneficiary of such petition will not be considered to be subject to the payment if he or she subsequently departs the United States and applies for a visa based on the approved petition and/or seeks to reenter the United States on a current H-1B visa.” The update does not rescind the proclamation or the $100,000 fee, which continues to apply to highly skilled professionals coming into the U.S. and certain individuals already inside the U.S.

Statement. “We are encouraged that the government appears to recognize the immediate harm this policy causes to workers already in the United States, including many of our members and employees. But this guidance is limited, unclear and fails to fix the core problem: the Trump-Vance administration is still trying to impose a $100,000 price tag on immigration without authority from Congress,” the coalition said in a statement to Democracy Forward. “Our communities cannot plan around uncertainty, nor can we allow life-saving care, student learning, and scientific research to be held hostage to shifting, arbitrary rules. Our lawsuit will continue until the proclamation is blocked and the rule of law restored.”

Companies: Global Nurse Force; Democracy Forward

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