Presidential Proclamation on H-1B Restrictions and Fees – What We Know as of Sept. 22

The September 19 Presidential Proclamation titled “Restriction on Entry of Certain Nonimmigrant Workers” is not an absolute travel/adjudication ban on H-1B petition adjudications and admission of existing H-1B visa holders without the payment of $100,000.00, but the various agencies trying to implement the Proclamation are issuing rapid-fire clarifications. The Proclamation took effect at 12:01 am on September 21. 

The United States Citizenship and Immigration Services (USCIS) clarifying memo is posted here.

 The Customs and Border Protection (CBP) clarifying memo is posted on X here.

The Department of State (DOS) posted its clarifying FAQ  yesterday, September 21, here.

USCIS

USCIS has clarified the scope of the Proclamation. The Proclamation ONLY applies to I-129 H-1B petitions THAT HAVE NOT YET BEEN FILED. (We are not sure if this clarification might affect a potential beneficiary in the future, who is presently in the United States, differently.)

It does not apply to:

1. H-1B beneficiaries of I-129 petitions filed BEFORE the effective date of the Proclamation. (NOTE: This says filing is enough, but approval is not required.)
2. H-1B beneficiaries who have validly issued H-1B nonimmigrant visas.
3. The Proclamation DOES NOT affect the ability of ANY current visa holder to travel to or from the United States.

(Allegedly, visa-exempt Canadians already admitted in H-1B status before the effective date are ok to continue to travel back and forth to and from the United States.
As to 22 CFR §41.112(d) regarding automatic revalidation -  I-129 change of status beneficiaries approved by USCIS before the effective date should be allowed admission in H-1B. We need CBP’s confirmation regarding visa-exempt Canadians and the application for automatic revalidation.)

What about petitions filed after the effective date (September 21) for H-1B cap-exempt employers like universities? We do not know if they will be exempt from the Proclamation.

What about trying to renew an existing H-1B visa for a current H-1B visa holder before the Proclamation and entering the United States post the renewal, if approved by DOS?   These renewals will NOT be subject to the Proclamation, which has a 12-month validity.

What about the future filing of H-1B I-129 petitions for those currently in the United States as of the Proclamation’s effective date? We are not sure if these I-129 petitions might be exempt or not after the effective date of the Proclamation. We absolutely are also not sure if such H-1B beneficiaries would or would not be subject to the Proclamation if they later leave the United States to apply for an H-1B visa. Of course, if not exempt, then the $100,000.00 fee per I-129 or National Interest Exception (NIE) becomes a consideration.

What about H-1B visa cap exempt employers? Are they subject to the Proclamation? We have no clarification on that point.

What if I need an National Interest Exception (NIE) because I filed an I-129 H-1B petition after the effective date of the Proclamation, and of course , I am trying to save $100,000? Well, the NIE request can be filed by an employer for all H-1B beneficiaries, by an industry, or by the individual.

How do we do that? Not sure yet. It would seem that we might be able to file with USCIS in advance or with the I-129 petition filed after the Proclamation effective date. As to the NIE standards, the State Department issued a cable back in June with guidance that should be relevant. The critical industries identified during the COVID-19 travel restrictions should also be relevant.

Customs and Border Protection (CBP)

1. CBP confirms it will continue to process all current H-1B visa holders in accordance with existing procedures.
2. CBP confirms that the State Department and USCIS will be implementing the new $100,000 requirements as to H-1Bs regarding I-129 petitions for those foreign nationals OUTSIDE of the United States for “NEW” H-1B petitions only. So, do we have an exception if the beneficiary was inside the United States before the Proclamation based on their presence alone – not clear and appears not to be possible based on the subsequent agency guidance noted.
3. CBP confirms that existing visa holders will not have their travel to and from the United States affected.
4. CBP confirms the Proclamation does NOT impact –

• I-129 H-1B beneficiaries of approved petitions.
• I-129 H-1B petitions filed prior to 12:01 am ET on September 21, 2025.
• Foreign nationals in possession of validly issued H-1B nonimmigrant visas.

Department of State (DOS) – Consular Visa Applications

1. DOS confirms that the Proclamation DOES NOT apply to previously issued H-1B visas or any “petitions” submitted prior to 12:01 am Eastern Daylight Time on September 21, 2025. DOS does not process I-129 petitions. That (petition processing) is done by USCIS. DOS does address visa applications based on the submission of a DS-160 form online to DOS. H-1B visa applications are not possible without a prior I-129 petition approval from USCIS issued on an I-797 form. So, this FAQ from DOS appears to confirm that DOS will process an “initial” visa application for an I-129 filed with USCIS before 2:01 am Eastern Daylight Time on September 21, 2025, which is approved by USCIS after this date without the $100,000.00 fee. It will also process an H-1B visa application based on an I-129 approved by USCIS before 12:01 am Eastern Daylight Time on September 21, 2025, without the $100,000.00 fee.
2. DOS confirms that H-1B “renewals” will not be changed as to payments or fees. DOS only processes visa renewal applications. USCIS processes H-1B amendments and/or extensions. Thus, it appears that H-1B visa renewals for those holding H-1B valid visas prior to 12:01 am Eastern Daylight Time on September 21, 2025, will be processed by DOS without confirmation of payment of the proposed $100,000.00 fee per I-129.
3. DOS confirms that any current H-1B visa holder before the Proclamation’s effective date may travel to and from the United States. The United States has not prevented departure from its borders by a valid visa holder unless arrested for some type of criminal action and incarcerated, but the bottom line is that H-1B visa holders before the Proclamation may be admitted to the United States based on that visa, if otherwise qualified for admission, which is the normal rule for admission.

We expect ongoing clarifications. The situation is very fluid. My email is KWalker@dickinson-wright.com, and I will be posting updates on LinkedIn, etc. All members of the Immigration Practice Group will be updating clients on this issue as needed.

Resources:

• CBP September 20 Memo about Presidential Proclamation on H-1B
• H-1B Processing Memo