Added 10/9/2025
On Friday, September 19, 2025, the Trump Administration issued an Executive Order (EO), titled Restriction on Entry of Certain Nonimmigrant Workers, that imposes new restrictions on the H-1B visa program. The new rule took effect on September 21, 2025.
The EO is designed to curb what the administration views as the exploitation of the H-1B program, citing its use to replace American workers with lower-paid foreign labor. The order makes it significantly more costly for employers by imposing a $100,000 payment for each new H-1B petition for workers located outside the U.S.
This fee will remain in effect for 12 months unless extended by the government. Employers must show proof of payment when filing, and both the Department of Homeland Security (DHS) and the Department of State will check for compliance. In rare cases, DHS may grant an exception if a specific H-1B worker is deemed important to the national interest.
Who is Affected?
While there was initial confusion, memos from U.S. Citizenship and Immigration Services (USCIS) (USCIS) and the U.S. Department of State have since clarified the restrictions. The new rules do not apply to:
- Any H-1B visa holders with a valid visa stamp
- Any H-1B petition that is currently approved
- Any H-1B petition that was pending with USCIS before September 21, 2025
This means the restrictions and the $100,000 fee only apply to new H-1B petitions filed with USCIS after September 21, 2025, on behalf of foreign nationals who are physically located abroad.
Important Considerations
Notably, this EO may be subject to future legal challenges. It is argued that the President lacks the authority to create new visa categories or to set other terms and conditions, including required visa fees. However, the EO does signal the administration’s intent to use the formal rulemaking process to increase the prevailing wage requirements associated with the H-1B visa.
H-1B Visa Background
The H-1B is a non-immigrant visa that allows U.S. employers to temporarily hire foreign workers in “specialty occupations,” which are generally positions requiring a bachelor’s degree or higher. The program is designed to help employers who cannot find the necessary skills and abilities within the U.S. workforce.
The H-1B program is employer-sponsored, meaning the U.S. employer must file the necessary petition with USCIS on behalf of the prospective employee. H-1B status is typically granted for an initial period of three years and can be extended for a maximum of six (6) years, with some exceptions. A key feature of the H-1B visa is its “dual intent,” which allows visa holders to pursue permanent residency in the U.S. while on the visa.
Other Proposed Changes and Developments
In addition to the newly imposed $100,000 fee requirement for new petitions, the Department of Homeland Security (DHS) has proposed a new rule to replace the H-1B random lottery system with a weighted selection process. This new system aims to favor the selection of higher-skilled and higher-paid workers by giving registrations for higher-wage positions more entries into the selection pool. For example, a registration for a Wage Level IV position would get four entries, while a Wage Level I position would receive just one entry. While this approach maintains the opportunity to secure workers at all wage levels, it will likely make it less probable for employers seeking lower-paid registrants to be selected.
The Department of Homeland Security (DHS) is seeking public feedback. The public comment period is open until November 24, 2025.
The U.S. Department of Labor has also launched Project Firewall, a new H-1B enforcement initiative that significantly expands oversight by requiring the Secretary of Labor to personally certify investigations where violations are suspected. The program emphasizes aggressive enforcement and interagency collaboration, meaning employers should expect increased audits, information-sharing among agencies, and heightened scrutiny. Employers that rely on H-1B workers are urged to proactively review compliance protocols, wage practices, and recruitment procedures to mitigate risk of penalties or debarment.
Key Takeaways for Employers
- Provisions Only Apply to New Petitions. The new fee and restrictions are prospective and only apply to petitions that have not yet been filed. If you have an H-1B petition that was already approved, is pending, or is for an employee who has a valid visa stamp, the new rules don’t apply.
- Uncertainty Remains. Despite the clarifications, some ambiguity still exists and there are some unanswered questions such as how the fee is to be paid or how or when a National Interest Exemption will be granted. The White House press secretary stated that the restrictions will not apply until the 2026 (FY 2027) H-1B lottery cycle, but this is not reflected in either the EO or the agency’s guidance. This leaves the application of the order to employers who hire from the annual H-1B lottery process somewhat ambiguous.
Next Steps for Employers
Given the evolving nature of this situation, employers should exercise caution and take proactive steps to ensure compliance.
- Review Your H-1B Workforce: Assess your current and future H-1B needs. Identify any pending or upcoming petitions to determine if they fall under the new restrictions.
- Audit Your H-1B Labor Condition Applications and Public Access Files: Conduct an internal audit of their H-1B Labor Condition Applications (LCA) and public access files to confirm that required wages are being paid and that job duties and work locations match certified filings and that these documents can be easily made available if you become the subject of government investigation.
- Adjust Your Talent Acquisition Strategy: Reassess your approach to sourcing qualified U.S. workers, especially in critical STEM fields. Use a skills-based hiring model that emphasizes practical abilities over academic credentials, and partner with recruiting or staffing firms that specialize in STEM placements to broaden your access to U.S. talent.
- Explore Alternative Visa Options: The new H-1B fee may make other visa types, such as the O-1 visa (for individuals with extraordinary ability) and the L-1 visa (for intracompany transfers), more financially attractive. While these visas have different eligibility criteria, they may be good alternatives for certain employees.
- Consider Submission of Comment to Proposed Rule on the Lottery Process: Employers should consider providing feedback supported by data or real-world examples to help inform the administration of the potential impacts on U.S. competitiveness for global talent.
- Stay Informed: Monitor official guidance from USCIS and other relevant government agencies. The situation is still developing, and further updates are likely.
- Consult Legal Counsel: Seek advice from immigration legal counsel to navigate the complexities of this new guidance and its potential impact on your specific business operations. This is especially important for companies that rely on the annual H-1B lottery.
HR Works will continue to monitor this topic and provide more information as it becomes available.