CSG Law Alert: Significant H-1B Program Changes – New $100,000 Fee, Enforcement Initiative, and Proposed Lottery Overhaul
Last Friday, President Trump signed a Presidential Proclamation that bans an H-1B employee from entering the United States unless their employer has paid a $100,000 fee for the sponsored employer. This week, there has been some clarifying guidance and additional initiatives. There remains significant uncertainty related to certain H-1B workers, and whether the Proclamation will be challenged in court. We will continue to update you as we know more.
Presidential Proclamation – $100,000 Supplemental Fee for Certain H‑1B Petitions
Key Details:
- Effective Date: September 21, 2025 – September 20, 2026 (subject to possible extension).
- Scope: Appears to apply only to new petitions for workers outside the U.S. filed after the effective date.
- Appears to not apply to existing H‑1B visa holders with a currently valid petition, renewals, amendments, or petitions filed prior to Sept. 21, 2025.
- Fee requirement applies to both cap-subject and cap-exempt H-1Bs.
- National Interest Exceptions (NIE): Limited, case-by-case waivers may be granted for roles critical to U.S. interests, such as healthcare, national security, and critical infrastructure. No blanket exemptions have been announced at this time.
- What We Don’t Yet Know: There remain many variables and gray areas, and any H-1B Worker with pending petitions or travelling for a visa renewal should exercise extreme caution and HR should contact CSG prior to any proposed travel.
- It is unclear whether the fee applies to an H-1B petition for an H-1B Worker who is currently outside the U.S.
- It is unclear whether the fee applies to H-1B petitions for candidates within the U.S. in another status.
- It is unclear whether the fee will apply to H-1B Change of Employer petitions.
- Clarifications:
- The fee is not annual; it applies once per petition.
- Current H‑1B visa holders with currently valid petitions and maintaining valid status may travel and reenter without paying the fee.
- Beneficiaries of petitions filed before the effective date are not subject to the fee.
While an individual H-1B Worker may not be subject to the fee, we expect and have encountered some uncertainty at U.S. Consulates and U.S. Customs and Border Protection in the implementation of the Proclamation. This may lead to delays in visa issuance or U.S. entry even if an individual is not subject to the fee.
DOL Launches “Project Firewall” – H‑1B Enforcement
The U.S. Department of Labor (DOL) has launched Project Firewall, a major enforcement initiative aimed at ensuring strict compliance with H‑1B program requirements.
Key Details:
- Secretary-Certified Investigations: The Secretary of Labor can now personally authorize investigations where “reasonable cause” exists.
- Expanded Enforcement: Violations may result in back wage payments, civil penalties, and debarment from the H‑1B program.
- Interagency Collaboration: DOL will coordinate with the U.S. Department of Justice’s Civil Rights Division, Equal Employment Opportunity Commission (EEOC) and U.S. Citizenship and Immigration Services (USCIS) to identify discriminatory practices and ensure broad, coordinated enforcement.
Employer Action Items:
- Audit H‑1B policies and practices for wage compliance and accurate job classifications.
- Maintain complete and accessible Public Access Files (PAFs).
- Prepare for potential investigations by organizing payroll, LCA, and immigration documentation.
DHS Proposes Weighted H‑1B Lottery Based on Wage Levels
On September 24, 2025, The Department of Homeland Security published a proposed rule to replace the current random lottery with a weighted selection system favoring higher wage levels:
- Wage Level IV: 4 entries
- Wage Level III: 3 entries
- Wage Level II: 2 entries
- Wage Level I: 1 entry
The proposal aims to prioritize highly skilled, higher-paid positions. A 30-day public comment period is now open for this proposed rule. If finalized, these changes could apply to the FY 2026 cap season.
Our immigration team is closely monitoring these developments and will provide updates as new guidance becomes available. For questions or assistance with compliance strategies, please email us at immigrationadmin@csg-demo.devlunch.co or contact your CSG Law lawyer.