An employer who petitions for an individual, such as an F-1 student, who changes to H-1B status without leaving the United States should not have to pay the $100,000 fee. However, the two agency memos released over the weekend are not crystal clear on this. The CBP memo says the fee only applies to people outside the US, but the USCIS memo does not say that, and USCIS adjudicates H-1B petitions, notes Dan Berger of Green & Spiegel. The weekend memos clarify that current H-1B employees who did not pay the fee can still travel. But since this is an evolving situation, employers should seek legal advice and watch for agency guidance before individuals travel.

If the H-1B travel ban remains in place, cap-exempt organizations, such as universities, would have to pay the $100,000 fee to hire new professors or researchers if they are outside the country and a petition has not already been filed for them. The $100,000 fee, on top of other government fees, attorney costs and salary requirements, will act as a prohibition on hiring individuals outside the country in H-1B status for nearly all employers.

Immigration Lawsuits Are Coming Over the H-1B Visa Proclamation

After issuing the proclamation, Trump officials responsible for immigration policy should expect to find themselves in a familiar place—inside of a courtroom. Attorneys believe they have a strong case but may have to contend with a Supreme Court that has often deferred to the president on immigration policy.

Immigration attorney Curtis Morrison of Red Eagle Law said in an interview that he plans to file a lawsuit against the H-1B proclamation. “I want to say it’s nuts that the proclamation cites 8 U.S.C. 1182(f) as authority, when that provision only gives the president authority to prevent entry, and gives the president no authority with respect to petition approval or visa issuance,” said Morrison. “This is fresh on my mind as I won an injunction on this issue just a month ago.” The case was Thein v. Trump, which focused on whether Trump’s travel ban can prevent the State Department from issuing visas to Diversity Visa lottery winners.

“8 U.S.C.1185(a) doesn’t make this proclamation lawful either,” said Morrison, “because it only gives the president authority to prescribe reasonable rules for foreigners to depart or enter the U.S. It’s clear from this proclamation they’re making rules about how petitions are approved and how visas are issued. Also, I don’t think this proclamation can survive a nondelegation challenge.” Nondelegation refers to the constitutional issue whereby Congress cannot give away its legislative authority.

Immigration attorney Cyrus Mehta is less confident a lawsuit will succeed. “While the proclamation is so blatantly unlawful that it rewrites parts of the INA (Immigration and Nationality Act), I am not as sanguine of a successful challenge to the proclamation after the Supreme Court upheld Trump’s travel ban under INA 221(f) in Trump v. Hawaii,” he said in an interview. “The H-1B proclamation has also been issued pursuant to INA 221(f).”

“The proclamation rehashes many of the objections to the H-1B visa category that have become outdated and seem to cast IT firms of Indian heritage in an unfavorable light,” said Mehta. “H-1B workers are no longer cheap labor and provide great value to U.S. companies, which in turn create more jobs for U.S. workers. H-1B workers are mostly paid six figure salaries. The rules also ensure that H-1B workers are paid the higher of the prevailing or actual wage.”

Mehta said a court may not challenge the president’s rationale behind the proclamation, but a court could evaluate whether imposing the $100,000 fee rewrites H-1B law or only supplants it. “To me, it is a complete rewrite of the law, and so a court should be able to distinguish this proclamation from Trump v. Hawaii,” he said. “The president cannot wholesale re-write laws enacted by Congress, and decide the sort of immigrant he prefers over another based on personal whim and prejudice.”

On October 1, 2020, U.S. District Judge Jeffrey S. White issued a preliminary injunction against the Trump administration’s June 2020 proclamation that suspended the entry of foreign nationals on H-1B, L-1, H-2B and most J-1 temporary visas. Judge White ruled the president does not possess a monarch’s power to cast aside immigration laws passed by Congress. The order in NAM v. DHS prevented the State Department and Department of Homeland Security from “engaging in any action that results in the non-processing or non-issuance of applications or petitions for visas in the H, J, and L categories which, but for Proclamation 10052, would be eligible for processing and issuance.”

At a September 11, 2020, hearing in the U.S. District Court for the Northern District of California, Paul Hughes of McDermott Will & Schulte, counsel for the plaintiffs, framed the issues: If Congress delegated unlimited authority to the president under Section 212(f) of the Immigration and Nationality Act (8 U.S.C. § 1182(f)), the law is unconstitutional as an unlawful delegation of authority by Congress. If the authority is not unlimited, then there are limits to the president’s authority based on rational standards and court precedents.

Judge White cited an amicus curiae brief from law professors that all past presidents “had issued such Proclamations with the basic understanding that ‘exercises of authority under § 1182(f) must connect to the United States’ relations with foreign powers.’ As the Court examines this Proclamation in the immigration context aimed to address purely domestic considerations, the amicus suggest that ‘[g]iven this lack of pedigree on past practice, this Court should scale back deference that it affords the current proclamation.’”

“There must be some measure of constraint on Presidential authority in the domestic sphere in order not to render the executive an entirely monarchical power in the immigration context, an area within clear legislative prerogative,” according to Judge White. In a footnote, Judge White expressed skepticism that the ban on the entry of visa holders banned under the proclamation would end. The ban ended after Joe Biden took office.

Proclamation Makes Selective Immigration Claims To Justify H-1B Travel Ban

The H-1B proclamation makes only a limited attempt to justify the extraordinary action of banning the entry of an entire visa category of highly skilled individuals. “The Trump administration makes highly selective claims that ignore a large body of economic research on the benefits of admitting H-1B visa holders to justify its presidential proclamation imposing a travel ban on H-1B visa holders whose employers do not pay a prohibitive $100,000 penalty,” concluded a National Foundation for American Policy analysis.

“The presidential proclamation’s omissions, cherry picking and obfuscation of data indicate the administration decided on the policy details in the proclamation and later attempted to find material to support the policy rather than engage in a legitimate analysis that culminated in banning the entry of H-1B visa holders, absent a $100,000 fee,” according to the NFAP report.

The proclamation argues that an increasing unemployment rate in technology fields justifies the H-1B travel ban, despite the unemployment rate declining in these fields. “The unemployment rate for computer and mathematical occupations dropped from 3.4% to 3.0% between August 2024 and August 2025, according to the Bureau of Labor Statistics,” notes the NFAP analysis. “The unemployment rate for architecture and engineering occupations fell from 1.7% to 1.4% between August 2024 and August 2025. Those numbers represent a decline in the unemployment rate in percentage terms of 11.8% for individuals in computer and mathematical occupations and a drop of 17.6% for professionals in architecture and engineering.”

The proclamation ignores the overall unemployment rate in these fields over the past 12 months but cites data on the unemployment rates among college graduates aged 22 to 27 from 2023—without noting the data were from 2023. The fourth table in a group of tables released by the Federal Reserve Bank of New York divides the population of college graduates aged 22 to 27 in a survey into 72 college majors, resulting in much smaller sample sizes, which creates volatility and less reliability in the results. For example, although the proclamation cites a 7.5% unemployment rate for recent college graduates in computer engineering, it does not note the figure is from 2023 or that in 2022 the survey showed the unemployment rate in computer engineering was only 2.5%. Other fields, such as agricultural economics, also showed wild fluctuations from year to year. The NFAP analysis notes that it is unlikely the numbers in the survey are a strong indicator of career prospects in particular fields.

The proclamation ignores the significant job creation that has benefited U.S. workers in technology fields over the past few decades. “The number of U.S.-born workers employed in computer science and mathematical occupations increased by over 2.7 million, or 141%, between 2003 and 2024,” according to an NFAP analysis of Bureau of Labor Statistics data.

The proclamation implies that U.S. college students would be better off majoring in art history than in computer fields due to H-1B visa holders. There is no evidence to support such a conclusion.

A 2021 NFAP study by Madeline Zavodny, an economics professor at the University of North Florida and a former research economist at the Federal Reserve Bank of Dallas and Federal Reserve Bank of Atlanta, found, “Median earnings of college graduates with a computer-related major are 35% higher than other STEM majors and fully 83% higher than non-STEM majors, according to data on U.S.-born college graduates from the American Community Survey for the period 2009 to 2019.”

The proclamation ignores almost entirely the vast number of studies produced on H-1B visa holders. The NFAP analysis cites more than a dozen to illustrate the point.

For example, an NFAP study by economist Madeline Zavodny concluded, “H-1B visa holders do not adversely affect U.S. workers. On the contrary, the evidence points to the presence of H-1B visa holders being associated with lower unemployment rates and faster earnings growth among college graduates, including recent college graduates.”

A study by economists Giovanni Peri, Kevin Shih, Chad Sparber and Angie Marek Zeitlin found that denying entry to H-1B visa holders due to the H-1B annual limits inhibited job growth for U.S.-born professionals. “The number of jobs for U.S.-born workers in computer-related industries would have grown at least 55% faster between 2005-2006 and 2009-2010, if not for the denial of so many applications in the recent H-1B visa lotteries,” concluded the economists.

In a study particularly relevant to the new H-1B proclamation, research by Britta Glennon, an assistant professor at the Wharton School of Business at the University of Pennsylvania, concluded that new restrictions on H-1B visas are likely to push jobs out of the United States: “[A]ny policies that are motivated by concerns about the loss of native jobs should consider that policies aimed at reducing immigration have the unintended consequence of encouraging firms to offshore jobs abroad.”

More Immigration And H-1B Visa Restrictions On The Horizon

Trump officials appear unlikely to slow their pace after issuing the travel ban on H-1B visas. The proclamation calls for reviving the Trump administration’s efforts in 2020 to publish a Department of Labor rule to inflate the required salary for H-1B visa holders and employment-based immigrants. The 2020 measure mandated minimum salaries so far above the market wage for a foreign national’s experience level that analysts concluded Trump officials intended to price H-1B visa holders and employment-based immigrants out of the U.S. labor market. Unlike the proclamation, such a rule would apply to individuals inside the United States, not just those seeking entry.

Trump officials are likely to continue their efforts to dismantle the current immigrant talent pipeline by, among other things, making it more difficult for international students to obtain H-1B status. The effort will include finalizing the recently proposed rule to require fixed periods of admission for students, rulemaking to curtail or eliminate, in practice, Optional Practical Training and STEM OPT, a new H-1B selection process expected to disadvantage international students and an H-1B rule that will likely introduce new restrictions for companies.

If employers did not have enough to worry about, the Department of Labor announced a new immigration effort on September 19, 2025. “The U.S. Department of Labor today announced the launch of Project Firewall, an H-1B enforcement initiative that will safeguard the rights, wages, and job opportunities of highly skilled American workers by ensuring employers prioritize qualified Americans when hiring workers and holding employers accountable if they abuse the H-1B visa process,” according to a news release.

The Secretary of Labor promises to “personally certify the initiation of investigations for the first time” in the Labor Department’s history. The DOL release on the new immigration action notes, “As authorized by federal law, the department will conduct investigations of employers through Project Firewall to maximize H-1B program compliance.”