Key Changes Under the New Proclamation
- $100,000 Payment Requirement: Any new H-1B specialty occupation petition filed after **12:01 a.m. Eastern Daylight Time on September 21, 2025** must be accompanied by a payment of **$100,000** by the prospective employer.
- Timing: The requirement applies to *new* H-1B petitions submitted after the deadline above, which includes the FY2026 H-1B lottery.
- Scope of Restriction: It restricts the entry of persons outside the U.S. under the H-1B specialty occupation who do not meet the payment requirement. The restriction is in effect for 12 months unless extended.
- Exemptions / National Interest Waivers: The restriction does *not* apply if the Secretary of Homeland Security determines that hiring an alien is in the national interest and does not pose a threat to U.S. security or welfare.
- No Effect on Previously Filed or Issued Visas: The proclamation does not affect H-1B petitions filed before 12:01 a.m. EDT on September 21, 2025, nor H-1B visa holders who already have valid visas.
- Rulemakings to Follow:
- The Department of Labor will initiate rulemaking to revise prevailing wage levels to align with the goals of this proclamation.
- The Department of Homeland Security will work on prioritizing “high-skilled, high-paid” beneficiaries in the H-1B lottery.
Who Will Be Affected & How
The changes are likely to have broad implications for employers, prospective H-1B visa applicants, and the U.S. labor market overall. Below are some of the major areas of impact:
Employers
- Employers who routinely file H-1B petitions for foreign workers outside the U.S. will need to budget an additional $100,000 per petition (where applicable). This may discourage some smaller companies or those with tighter margins from applying, or lead to more selective approaches.
- There may be an increased administrative burden to demonstrate that payments have been made, retain documentation, and ensure compliance between the employer, DHS (Department of Homeland Security), and DOS (Department of State).
- Employers in STEM, tech, and outsourcing sectors, areas repeatedly identified in the proclamation as among those with past abuses, will likely see especially close scrutiny.
Prospective H-1B Visa Applicants
- Applicants who are outside the U.S. or whose employment start dates require consular processing will need to work closely with their employers to ensure all new requirements are met, especially the payment.
- Those counting on lottery selection may now face a higher bar of wage levels, since upcoming rulemakings aim to prioritize “high-paid, high-skilled” beneficiaries. Applicants in lower wage tiers may find it more difficult to win in the lottery.
- Visa renewals and existing holders are not directly impacted by this proclamation, so long as their status remains valid and there is no change in employer or petition that triggers the new requirements.
U.S. Labor Market & Workers
- The government’s justification emphasizes protecting U.S. workers from wage suppression and job displacement. The expectation is that by imposing this payment requirement and revising prevailing wages, American workers may see better wage protection in key fields.
- There may be fewer H-1B entries from lower-wage foreign workers, which could reduce competition in certain roles, but also raise concerns among employers relying on such workers to fill positions. Balancing demands, labor supply, and wage expectations will likely become more complex.
- Potential for delays or legal challenges could introduce uncertainty for both employers and foreign workers, especially during transitions. Advising clients will require careful monitoring of the implementing regulations.
Legal & Practical Considerations for Applicants and Employers
Given the scale of change, here are the strategic and legal issues you should consider:
- Contract Timing & Notice: Employers should ensure that any promise of employment, especially with foreign nationals, clearly addresses whether the role satisfies the new payment requirement. Miscommunications or contracts drafted without awareness of this rule may lead to rejected petitions.
- Documentary Evidence: Employers must retain proof of the $100,000 payment (for applicable petitions) in the format prescribed by USCIS / State Department / DHS guidance. Proper recordkeeping will be vital.
- Preparation for Rulemaking Outcomes: Since wage and lottery reforms are forthcoming, both applicants and employers should track proposed rules, submit comments where appropriate, and adapt hiring / application strategies accordingly.
- Exemption / National Interest Path: Some petitions may qualify for exemption if shown to be in the national interest or not posing risks. Identifying possible cases that meet that standard may become more critical. Legal counsel should evaluate which roles/industries are more likely to be exempted.
- Risk of Delays or Litigation: Given the magnitude of change, there may be administrative delays as agencies issue guidance, interpret the proclamation, and adjust internal processes. Some petitioners may also pursue litigation or challenge certain aspects—e.g., what counts as “high-paid,” how “national interest” is defined. Employment law and immigration law overlap here.
Conclusion: What to Expect Moving Forward
The September 2025 proclamation marks a significant turning point for the H-1B program. While designed to curb abuses, suppress wage distortion, and safeguard U.S. workers, it also raises hurdles for employers and foreign nationals seeking specialty occupation work in the U.S. More importantly, it signals that future policy will lean toward higher wages, more selective adjudication, and increased regulatory oversight. For future applicants and employers, adaptability will be essential. Those who anticipate the impact, plan accordingly, and seek expert legal counsel will be best positioned to navigate these changes.
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JEREMY L. RICHARDS is the founding partner of Richards and Jurusik and has dedicated his career to U.S. immigration law, with a specialized focus on assisting Canadian and Mexican citizens under the United States-Mexico-Canada Agreement (USMCA) to work and live in the United States. (Full Bio)
