President Trumpโs systematic dismantling of the immigration system is now targeting an important program for obtaining foreign national talent, known as the H-1B program. Employers use the program to employ professionals in specialty occupations, which are those that require at least a bachelorโs degree in a specialized field. While ostensibly a protectionist measure for U.S. IT professionals, the scope impacts all H-1B professionals, including physicians, teachers, and a host of other critical occupations.
Trump Administration Imposes $100,000 Fee on H-1B Employers
No, that is not a typo. The administration has, in fact, imposed via Proclamation, a $100,000 cost (herein after referred to as โPenalty Feeโ) on certain H-1B beneficiaries. There is significant inconsistency between the Proclamation, the White House issued Frequently Asked Questions, news reports citing unnamed White House officials, and the governance by social media postings coming out of the White House. It may be that this will only apply prospectively to the H-1B lottery drawing that will take place in 2026, according to one unknown source, but we simply do not know.
The proclamationโs plain language provides ONLY one distinction – whether the individual is in the United States as of September 21, 2025 or outside the United States on September 21, 2025. However, White House statements suggest the proclamation does not apply to current holders of H-1B visas, or those renewing them. This imprecision of language has left significant confusion and, as of yet, the only โclarificationsโ are both incomplete or using imprecise language themselves and are not through any official mechanism (i.e. anonymous sources, or social media postings).
Recommendation for those in the United States: H-1B employees should not travel outside the United States, at a minimum until there has been clear guidance on the Proclamation. Simply put, do not leave the U.S. or, if you do, understand that you are not guaranteed to be able to return and that the rules can be changed without notice.
Hopefully, there will be more clarity to what was intended by this poorly drafted document in the coming days, and some sense of predictability returned to the system as a result.
Recommendations to H-1B Beneficiaries Outside the United States. Until and unless clarified officially by the administration, any H-1B beneficiary โ whether a new lottery winner or a long-time employee with an H-1B visa travelling for vacation โ if you are not back in the U.S. before 12:01 a.m. September 21, 2025, you cannot enter without evidence that this Penalty Fee has been paid. Again, we anticipate the administration will make, hopefully meaningful, clarifications of the scope of this program. If you have plans to travel back to the U.S. on an existing H-1B visa in the coming days, you will want to pay very close attention to how this is clarified.
Exceptions to the Imposition of the H-1B Penalty Fee
The proclamation states that the penalty fee does not apply to those H-1B beneficiaries employed in an industry or by an employer that the Secretary of Homeland Security determines to be in the National Interest and do not pose a โthreat to national securityโ. The reference to national security refers to the proclamationโs assertion that the H-1B program is a threat to national security because U.S. workers cannot get jobs because of the program.
There is no guidance or further explanation of what standard or set of criteria the DHS Secretary is to use, or when this is to occur. It appears to be a safe bet however, that beneficiaries and employers in the IT industry will not be granted any type of national interest exception.
What to Expect
The new fee imposed by proclamation is essentially a backdoor method of accomplishing restrictions on IT industry H-1B employees that the Trump Administration has not been effective at imposing through legislative or regulatory channels. This was a failed target of the prior Trump Administration. There is significant question whether such a fine can be imposed via executive action without formal rulemaking, as it is not consistent with the immigration laws imposition of user fees, not fines.
It is reasonable to expect that this action will be challenged. Regardless of how such challenges proceed, remaining physically present in the U.S. is, for the time being, the best course of action.
We will be closely monitoring this evolving situation and will publish any official updates as we learn them.
