Understanding the H-1B Visa and Trump’s $100,000 Executive Order

By Marylou Fabbo - Skoler Abbott P.C.

September 22, 2025

There has been much misinformation circulating since President Trump signed a proclamation titled “Restriction On Entry Of Certain Non-Immigrant Workers” (the “Order”) announcing a $100,000 fee per H-1B visa petition. For example, while many claim that an H-1B visa allows employers to hire employees at a lower rate, the opposite is actually true.  H-1B employees cost employers more than the cost of employing an American citizen in the same role (as we will explain in this blog).  Because incorrect information about the H-1B visa has been widely circulated, this blog will set the story straight. 

The H-1B visa has long been a cornerstone of U.S. immigration policy, allowing American companies to hire highly skilled foreign workers in specialty occupations such as technology, engineering, and healthcare. But the recent Order signed by former President Donald Trump has dramatically altered the landscape for employers seeking to use this visa program. 

What Is an H-1B Visa?

The H-1B visa is a very difficult to obtain nonimmigrant visa that permits U.S. employers to temporarily employ foreign workers in specialty occupations that require theoretical or technical expertise. These roles typically require at least a bachelor’s degree and specialized knowledge.  Non-exempt, hourly unskilled laborers such as farm workers or health care aides do not qualify. 

Some examples of specialty occupations in some different categories that may qualify for an H-1B visa:

• Technology & Engineering:  Degreed Engineers, Software Developers, Systems and Cyber Security Analysts. Who is not eligible? The person at your organization who you call whey you are having a problem with your computer is one example of a role that is not eligible for an H-1B visa.
• Healthcare & Life Sciences:  Physicians, Surgeons, Dentists, and Biomedical Engineers.  Not eligible to apply for the visa are certified nursing aides (a/k/a/ CNAs) and individuals in similar, hourly positions. 
• Education:  University Professor, Technical Writers (especially in academic or scientific fields).  Not eligible:  High school teachers, classroom aides, school bus drivers.
• Science & Research:  Chemists, Physicists, and Statisticians.

H-1B Visas are issued for three years, with the possibility of a maximum 3-year extension. 

H-1B Visas are Difficult to Get

Some articles we have read suggest that these visas are being handed out willy-nilly.  That is very far from true.  A cap of 85,000 H-1B visas are given out each year, and of the 85,000, 20,000 H-1B  Visa holders must hold a masters degree or above.  In FY 2025, 442,000 people entered into a required lottery to find out if they could apply for an H-1B visa.  Those selected did not automatically receive an H-1B visa, rather, they had to go through a vetting process that included their employers had to submit a petition (and relevant documentation) in support of the petition.  Many applicants are denied.  The government requires various fees for the H-1B process, and employers usually incur $3,000 -$10,000 (or more) in attorneys’ fees, depending on the complexity of the case.  No refunds are issued if the petition is denied or the employee quits; and, the employee cannot be required to pay anything other than an optional fee of around $2,000 to get a rush decision. 

Key Employer Obligations: H-1B Employees Must Be At Least Paid Prevailing Wage and At Least As Much as Their US Citizen Co-Workers in the Same Role

H-1B holders are not cheap labor, which may be exactly what you have been hearing.  One of the most important requirements for employers sponsoring H-1B workers is the prevailing wage rule. Under current law, employers must pay H-1B employees at least the prevailing wage for the occupation in the geographic area of employment—or the actual wage paid to similarly qualified employees in the same position—whichever is higher.

The prevailing wage is defined as the average wage paid to similarly employed workers in a specific occupation and location. This ensures that foreign workers are not used to undercut American wages.  This may be the exact opposite of what you have been reading.

If the employer is successful in the lengthy and costly process of hiring an H-1B employee, the H-1B employee is free to leave the employer’s employment an go work somewhere else with an H-1B transfer.  And, the employer cannot require the employee to pay back any of the costs it incurred in obtaining the visa.  In addition, if the employer lays-off or terminates the H-1B worker, the employer must offer to pay the costs associated with the employee returning to the employee’s home country.

Trump’s Executive Order: A $100,000 Fee Per H-1B Petition

On September 19, 2025, President Trump signed a sweeping Order that imposes a $100,000 fee per H-1B visa petition for workers outside the United States. This fee applies to new petitions filed after September 21, 2025, and is intended to curb what the administration has characterized as widespread abuse of the H-1B program.  The Order also includes:

• Stricter wage level rules, directing the Department of Labor to revise how prevailing wages are calculated.
• Prioritization of high-paid, highly skilled workers, especially in STEM fields.
• Exceptions for cases deemed in the national interest that don’t pose a threat to national security.  The exception can be granted by the Secretary of Homeland Security.

The order is set to last one year, but it may be extended.  Also, the order appears to be limited to H-1B workers outside the United States. 

Why the Change?

The Trump administration cited concerns that companies were using the H-1B program to replace American workers with lower-paid foreign labor.  (As noted above, that is incorrect.) The Administration also maintains that H-1B visas increased unemployment among U.S. tech graduates without knowing why those graduates don’t have jobs.  We do not know, however, if those individuals do not have jobs due to poor grades or interviewing skills, or something else.  Again, H-1B workers cost an employer quite a bit, so one would reasonably think there may be some reason other than non-existent cost-savings that some tech workers are not employed.

What This Means for Employers

Employers must now factor in the substantial $100,000 fee when considering H-1B sponsorship. Additionally, they must continue to comply with existing wage requirements, ensuring that H-1B workers are paid fairly and equitably.  While the order aims to protect American jobs, critics argue it may discourage innovation and push companies to offshore jobs instead of hiring talent in the U.S.  If you have questions or concerns about this new order, we recommend that you contact employment immigration counsel.

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