President Trump Makes Major H-1B Changes; Guidance Forthcoming

On Sept. 19, President Donald Trump signed a proclamation tiled “Restriction on Entry of Certain Nonimmigrant Workers,” which imposes a travel ban on future H-1B employees from entering the United States unless the employer pays a $100,000 fee or the secretary of homeland security grants an exemption. According to a statement issued by White House Press Secretary Karoline Leavitt on X, this ban does not apply to current H-1B visa holders or to renewals—it only applies to new visas. Leavitt also further clarifies that those who already hold H-1B visas and are currently outside of the country will not be charged the fee to re-enter. The proclamation also directs the federal government to take other steps restricting the H-1B visa program. Significant questions remain and we anticipate further guidance soon.

This alert discusses the immediate H-1B visa travel ban as well as the other H-1B program impacts.

BACKGROUND

The H-1B visa program is a non-immigrant visa that allows U.S. employers to temporarily hire foreign workers in specialty occupations that require theoretical or technical expertise, such as in fields like information technology (IT), engineering, finance and health care. To qualify, the job must typically require at least a bachelor’s degree or its equivalent, and the employer must demonstrate that the foreign worker possesses the necessary qualifications. The program is subject to an annual cap, with a lottery system used when applications exceed the limit. H-1B visas are initially granted for up to three years and can be extended to a maximum of six years, with potential pathways to permanent residency.

Certain members of President Trump’s inner circle have long been skeptical of the H-1B visa program. For example, former White House Senior Advisor Steve Bannon has long argued that the visa program is a scam: American companies are able to import foreign workers while rejecting Americans for the same jobs. The president includes that line of reasoning in his proclamation, arguing, “many American tech companies have laid off their qualified and highly skilled American workers and simultaneously hired thousands of H-1B workers.” In the past, others, like Elon Musk, have promised to “go to war” to protect the H-1B visa program.

IMMEDIATE H-1B VISA PROGRAM IMPACTS

President Trump’s H-1B visa proclamation imposes a travel ban on future H-1B employees from entering the United States unless the employer pays a $100,000 fee or the secretary of homeland security grants a national interest exemption.

The travel ban becomes effective on Sunday, Sept. 21 at 12:01a.m. EDT. Because the proclamation is styled as a travel ban, the immediate impact is on future H-1B visa holders who are currently outside of the United States. The ban is not imposed if the secretary of homeland security grants a national interest exemption. This exemption can be individual-, company- or industry-specific.

The proclamation does not explicitly exempt current H-1B visa holders in the United States, nor does it address how the new rules will impact any extensions of current visas. However, according to publicly available reporting confirmed by Brownstein, the travel ban will not apply to current H-1B visa holders. The ban only affects those with visa applications pending or future applicants. Along with other ongoing questions, the proclamation does not clarify how cap-exempt H-1Bs are treated. We expect additional guidance from the White House in the immediate future.

For applicants with H-1B visas pending, the U.S. Citizenship and Immigration Services (USCIS) is directed to withhold approval until the $100,000 fee is paid or the secretary of homeland security grants an exemption. The $100,000 fee is a per employee charge.

The proclamation directs the secretary of state to “verify receipt of [the $100,000] payment,” but includes no information regarding how the fee can be paid and to whom. We have confirmed that guidance is forthcoming and we expect it in the coming days. The proclamation also directs the secretary of state to issue guidance preventing individuals with approved H-1B petitions from obtaining B-1/2 visas, likely in an attempt to prevent avoidance of the $100,000 fee.

UNANSWERED QUESTIONS

Significant questions remain unanswered. These questions include:

1. How and to whom the $100,000 fee will be paid;
2. How the “national interest” exemption will be defined and administered;
3. Impact of the new regime on cap-exempt visas; and
4. Impact on H-4 visa holders.

OTHER H-1B VISA PROGRAM IMPACTS

Along with the travel ban, the president’s proclamation directs the federal government to make two additional regulatory changes. First, the proclamation directs the Department of Homeland Security to begin the process of H-1B lottery reform, including the prioritization of high-skilled and high-paid aliens. Second, the proclamation directs the Department of Labor to implement a rulemaking process to revise (and likely increase) H-1B prevailing wages. These two regulatory actions will increase costs related to the H-1B visa program.

NEXT STEPS

Reports indicate that the White House is working on providing additional guidance. In the meantime, we expect multiple lawsuits will be filed challenging the order. Brownstein will continue to monitor developments.

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THIS DOCUMENT IS INTENDED TO PROVIDE YOU WITH GENERAL INFORMATION REGARDING NEWLY ANNOUCNED FEES ON HB-1 VISAS. THE CONTENTS OF THIS DOCUMENT ARE NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE. IF YOU HAVE ANY QUESTIONS ABOUT THE CONTENTS OF THIS DOCUMENT OR IF YOU NEED LEGAL ADVICE AS TO AN ISSUE, PLEASE CONTACT THE ATTORNEYS LISTED OR YOUR REGULAR BROWNSTEIN HYATT FARBER SCHRECK, LLP ATTORNEY. THIS COMMUNICATION MAY BE CONSIDERED ADVERTISING IN SOME JURISDICTIONS.