Trump's Presidential Proclamation Manifests Uncertainty and Angst for H-1B Employers and Beneficiaries

By Mike Thompson - Lehr Middlebrooks Vreeland & Thompson, P.C.

September 30, 2025

Just over a week has passed since President Trump issued a September 19 Presidential Proclamation regarding the popular H-1B visa that sent H-1B visa holders and the employers that rely on them into a panic. This update is intended to summarily address the current status of the Proclamation’s impact.

For background, the H-1B visa is available for specialty occupation workers, a category that generally encompasses individuals who have attained a college degree in a specialty or field that is required for a particular position. H-1B visas are limited to 85,000 Cap subject visas per fiscal year with 20,000 of those visas reserved for foreign nationals holding a masters degree from a U.S. university. The available visas are subject to an annual lottery conducted each Spring for an employment period commencing on or shortly after the October 1 beginning of the government’s fiscal year. According to a September 25, 2025, Wall Street Journal article, there are approximately 700,000 people living in the United States on H-1B visas. According to the same article, Amazon had almost 15,000 beneficiaries approved for H-1B visas in FY 2025. Microsoft and Meta Platforms each had more than 5,000.

President Trump’s administration has taken an aggressive stance related to multiple immigration-related issues. Prior to the September 19 Proclamation, those measures had largely avoided targeting the traditional “white collar” immigration benefits. The September 19 Proclamation was a significant deviation from that approach announcing the implementation of a new $100,000 fee applicable to each H-1B visa. The Proclamation lacked details related to the application of the new fee. However, several clarifying announcements followed to address the resulting confusion. 

On Sunday, September 21, the Administration clarified certain aspects of the scope of the proclamation. In particular, the Administration clarified:

This Proclamation does not:

•  Apply to any previously issued H-1B visas, or any petitions submitted prior to 12:01 a.m. eastern daylight time on Sept. 21, 2025.
•  Does not change any payments or fees required to be submitted in connection with any H-1B renewals. The fee is a one-time fee on submission of a new H-1B petition.
•  Does not prevent any holder of a current H-1B visa from traveling in and out of the United States. (The Department of State confirmed this guidance.)

Accordingly, the Proclamation’s application is prospective only. With limited possible exceptions, any Fiscal Year 2026 visa that was allocated through the March 2025 lottery has already been filed so the additional fee is inapplicable.  Fiscal Year 2027 H-1B Cap submissions will be made in March 2026 so, although certainly not ideal for business planning purposes, there is time to evaluate what actions might be taken to ameliorate some of the impact that would result if the Proclamation is left in its current format.  

There remain a number of open questions including what impact the Proclamation might have on new Cap exempt H-1B petitions (e.g., those filed by colleges and universities, non-profit research organizations and other similar employers). The Proclamation does not exclude Cap exempt visas so, at least for now, the additional fee appears to apply. Notwithstanding that the fee is apparently applicable, information is not yet available regarding how the fee will be applied and collected. Given the number of unanswered questions, we anticipate (or are at least optimistic) that USCIS will expressly address these questions in the near future. We are also optimistic that clarification is forthcoming that the enhanced fee does not apply to Cap-exempt H-1B visas.

Although the language of the actual Proclamation can be interpreted otherwise, it appears that the intent is to collect the $100,000 fee at the time that selected lottery petitions are submitted for FY 2027.  We anticipate that the $100,000 price tag will, at a minimum, evolve significantly prior to it impacting the actual FY 2027 filings and likely prior to early 2026 when employers are compelled to decide whether to invest the money in an H-1B petition.  We also anticipate that there will be significant additional restructuring of the H-1B program during the forthcoming months including a potential effort to prioritize skill or compensation or both in favoring to whom the visas should be awarded rather than “luck” through a pure lottery.

Notwithstanding the above, the Administration’s position on business immigration is quite fluid and changes frequently without advance notice. The degree of uncertainty on both foreign nationals and employers who rely foreign labor is significant.

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