The Trump administration has imposed additional immigration measures to restrict companies from hiring H-1B visa holders. On Sept. 18, the White House posted a presidential proclamation that renewed the $100,000 fee levied on the entry of new H-1B professionals. The fee is blocked in court, but administration officials may have wanted to preserve their legal options. The proclamation reveals the Sept. 2025 $100,000 fee acted as a virtual prohibition on hiring new H-1B visa holders, with employers making the $100,000 payment for only about 700 individuals.

The second action was an executive order directing federal agencies to scrutinize H-1B applications more closely, particularly from companies that have laid off employees. The executive order could lead to more Requests for Evidence, as companies saw during Donald Trump’s first term.

H-1B temporary visas are often the only way for high-skilled foreign nationals to work in the United States long term. Employers must pay the higher of the actual or prevailing wage paid to U.S. professionals with similar experience and qualifications. Companies recruiting at U.S. universities find that international students make up about 75% to 80% of full-time graduate students in AI-related fields, such as computer and information sciences.

The Trump administration is proposing or implementing several policies to restrict employer access to foreign-born talent. These measures include:

  • A Labor Department proposed rule to substantially increase the prevailing wage required for H-1B visa holders and employment-based green card applicants.
  • A DHS proposed rule to enact a $103,265 fee on new H-1B professionals subject to the annual limit.
  • An upcoming DHS rule to impose new restrictions on the H-1B visa category.
  • A proposed rule to eliminate the ability of many spouses of H-1B visa holders to work in the United States.
  • A proposed rule to end the 60-day grace period for H-1B visa holders who lose jobs.
  • A final rule to restrict international students and J-1 visa holders to fixed four-year periods. A federal district judge recently postponed the final rule’s effective date.
  • A rule on the regulatory agenda to impose a significant fee on Optional Practical Training for international students

Trump Extends $100,000 Immigration Fee On New H-1B Visa Holders

The Trump administration has extended the $100,000 fee imposed on the entry of new H-1B visa holders. “On September 19, 2025, Proclamation 10973 (Restriction on Entry of Certain Nonimmigrant Workers) (2025 Proclamation), was issued to address significant abuses of the H-1B nonimmigrant visa program,” according to the proclamation. “The restrictions enacted by the 2025 Proclamation have proven to be highly effective but the underlying conditions necessitating the restrictions persist. It is therefore in the interests of the United States to extend the 2025 Proclamation for an additional 12 months, until 12:00 a.m. eastern daylight time on September 21, 2027.”

The proclamation states it was necessary to extend the $100,000 fee for an additional 12 months. “Although the 2025 Proclamation and subsequent rulemaking have had the desired effects, the underlying conditions precipitating their issuance persist and, without an extension of the 2025 Proclamation, it is highly likely that progress will halt and program abuse will resume, undermining American workers and posing a threat to the labor market that would be detrimental to the interests of the United States.”

In June, U.S. District Court Judge Leo T. Sorokin, in the District of Massachusetts, agreed with a coalition of 20 states, led by California Attorney General Rob Bonta, and supported the plaintiffs’ motion for summary judgment against the administration’s $100,000 fee imposed on the entry of new H-1B visa holders. He declared, “The Policy implementing the Proclamation is declared unlawful and is vacated in its entirety.”

Judge Sorokin said the case raised significant constitutional separation-of-powers issues. “Plaintiffs allege both that the Policy exceeds the scope of the President’s authority under the Immigration and Nationality Act, and that it encroaches upon Congress’s exclusive power to tax under the Constitution,” he wrote. According to the judge, “The Supreme Court’s reasoning in this pair of precedents supports a finding that the $100,000 payment requirement amounts to a tax, not a penalty.” The two Supreme Court precedents are Bailey v. Drexel Furniture Company and National Federation of Independent Business v. Sebelius .

In July, the U.S. Court of Appeals for the First Circuit rejected the Trump administration’s motion to stay Judge Sorokin’s decision. The Trump administration has appealed.

While the administration may have hoped to preserve its legal options by reissuing the proclamation, the document also contains elements that undermine its proposed rule imposing a new $103,265 fee on all H-1B petitions subject to the annual cap.

First, the proclamation is newsworthy because it provides data showing the $100,000 fee acted as nearly a complete prohibition on foreign nationals who needed their employer to pay the fee to enter the United States. That contradicts the central premise of the proposed rule, that so many employers would be willing to pay a $103,265 fee that DHS would still approve 85,000 H-1B petitions and raise $8.8 billion to fund various federal immigration functions.

“The 2025 Proclamation went into effect on September 21, 2025, and, since then, the $100,000 payment has been made for over 700 petitions ,” according to the new proclamation. (Emphasis added.) The revelation means DHS will have to explain how the administration can claim at least 85,000 individuals will still gain H-1B status each year by paying a $103,265 fee when employers were unwilling to pay an almost identical amount for only about 700 such professionals. DHS did not mention in its Notice of Proposed Rulemaking for the $103,265 fee that only about 700 payments of the $100,000 fee were made over the past year.

The $100,000 fee imposed in September 2025 applied to new H-1B petitions filed outside the country because the presidential proclamation used authority that blocks entry. The proposed rule applies to all H-1B petitions subject to the annual cap.

The proclamation creates another problem for DHS’s proposed rule. DHS justifies the rule based on one specific reason: “The new fee is designed . . . to recover a portion of the full costs of providing immigration adjudication and naturalization services incurred by multiple Federal agencies.” However, the new proclamation, levying an almost identical fee, states plainly that the administration imposed the original $100,000 and its extension not to raise revenue, but to restrict immigration and access to the H-1B category.

“Since the effective date of the 2025 Proclamation and subsequent promulgation of the DHS final rule, there have been several measurable impacts on the H-1B program, including a significant reduction in H-1B registrations filed by large IT outsourcing firms,” according to the proclamation. “There has also been a large reduction in consular processing requests, which are used to bring workers into the United States, noting a nearly 97% decrease from the FY 2025 to FY 2027 cap seasons.”

Administration attorneys will likely have to explain to a judge why a measure designed to discourage employers from hiring H-1B visa holders is now alleged to being used to raise revenue when put into the form of an agency rule. The news that only 700 or so individuals entered the United States after their employer was willing to pay $100,000 will further undermine the credibility of the DHS assertion that the $103,265 fee will not significantly deter H-1B hiring by employers and, thereby, allow it to raise $8.8 billion.

The proclamation did not mention that any employer over the past year received a waiver from paying the $100,000 fee because an individual’s entry was in the national interest.

Executive Order Directs Immigration Authorities To Increase Scrutiny Of H-1B Applications

On Sept. 18, the White House released an executive order on “Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program.” The order asks the State Department, Labor Department and Department of Homeland Security further to scrutinize H-1B petitions for initial and continuing employment.

Immigrant attorney Cyrus Mehta said in an interview that the order’s language suggests administration officials intend DOL and U.S. Citizenship and Immigration Services scrutiny to extend beyond visa issuance abroad and encompass the adjudication of H-1B petitions, including extensions. Mehta notes that the executive order delegates authority under INA § 215(a), but § 215(a) is fundamentally an entry-control provision.

“That delegation arguably supports restrictions tied to visa issuance and admission rather than USCIS adjudications of extension petitions filed by individuals already in the United States,” he said. “That could become a basis for challenge if DHS attempts to apply the order aggressively to extensions.”

“When processing petitions, labor condition applications, and visas for the entry into the United States of aliens as nonimmigrants to perform services in a specialty occupation under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act, the Secretary of State, the Secretary of Labor, and the Secretary of Homeland Security shall coordinate and consult with the Secretary of Commerce, the Secretary of Education, and the Administrator of the Small Business Administration to ensure the compliance of such petitions, applications, and visas with statutory requirements, including those in sections 101(a)(15)(H)(i)(b), 212(n), 214(i), and 274B of the INA,” according to the executive order. The Commerce Department, Education Department and SBA “shall provide any relevant wage, employment, academic, industrial, or other economic information.”

The executive order states, “The Secretary of State, the Secretary of Labor, and the Secretary of Homeland Security shall take into account in any labor condition application, petition, visa, and entry of aliens entering or attempting to enter the United States as H-1B nonimmigrants to perform services in a specialty occupation whether the employer sponsor directly or indirectly engaged in layoffs within the previous year or plans future layoffs that negatively affect the employment of similarly situated United States workers.”

According to the executive order, “Within 30 days of the date of this order, the Secretary of Labor, through the Administrator of the Wage and Hour Division, shall begin reviewing data related to previously submitted labor condition applications to determine whether further action against sponsoring employers is warranted under section 212(n)(2)(G).”

“The executive order cannot rewrite the statutory framework. Section 212(n) only imposes recruitment and layoff attestations on H-1B dependent employers and willful violators,” said Mehta. “Congress specifically chose not to subject all H-1B employers to those obligations. Therefore, even though Section 3(a) of the executive order directs agencies to consider layoffs by sponsoring employers and Section 3(b) instructs DOL to review LCAs and consider further action, it is difficult to see how the government can take enforcement action against a non-dependent employer merely because it laid off U.S. workers unless there is some independent statutory violation.” H-1B-dependent employers are companies with 15% or more of their U.S. workforce in H-1B status.

Mehta believes the executive order may signal heightened scrutiny of layoffs in adjudications and investigations, but questions whether it can legally create new substantive requirements that Congress did not enact. “Any effort to deny petitions or impose sanctions solely because a non-dependent employer conducted layoffs would likely be in violation of the statute,” he said.

The executive order may signal a return to the immigration policies of Donald Trump’s first term, which resulted in high denial rates and many Requests for Evidence. Mehta said, “If USCIS starts treating recent layoffs as evidence that U.S. workers are available, we could see a significant increase in Requests for Evidence and denials despite the lack of an express statutory basis for such inquiries.”