AILA Sends Administration Outstanding Questions on Implementation of H-1B Proclamation

On Friday, September 19, 2025, President Donald J. Trump signed a Proclamation, “Restriction on Entry of Certain Nonimmigrant Workers.” Although some guidance was issued by the various Departments charged with implementing the Proclamation, there remain many important and unanswered questions to which U.S. employers who employ H-1B workers must have to comply with the new requirements that took effect on September 21, 2025. Given that the new policy is already in effect, AILA would appreciate your prompt input and responses to the questions below:

General Questions on the H-1B Proclamation

Applicability

1. In the H-1B FAQ, it is stated the $100,000 payment, unless an exemption is granted, will apply to the 2026 lottery. Please confirm our understanding that you will require the $100,000 supplemental payment beginning with FY2027 H-1B Cap petitions to be filed in calendar year 2026.
2. The H-1B FAQ states the $100,000 fee is to be paid for “any new H-1B petitions” filed on or after September 21, 2025. It further states that it also applies to “any other H-1B petition” but does “not change any payments or fees required to be submitted with H-1B renewals”. Please confirm that:
   1. The fee will not apply to anyone seeking to extend H-1B stay who had an approved or pending petition or valid visa on the effective date of the Proclamation.
   2. The fee does not apply to H-1B petitions seeking to extend status with a change of employer.
3. Are cap-exempt employers – an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a), nonprofit organizations or entities related to or affiliated with an institution of higher education as defined in 8 CFR 214.2(h)(19)(iii)(B), nonprofit research organizations or a governmental research organization as defined in 8 CFR 214.2(h)(19)(iii)(C) exempt from the Proclamation?
4. Section 1(b) of the Proclamation prohibits a final decision on an H-1B petition that is not accompanied by the $100,000 fee for “individuals currently out side the United States.” Please confirm the following:
   1. At what time period is “currently out side the United States” – at the time the Proclamation took effect or at the time a petition is filed?
   2. A “new H-1B petition” filed on behalf of an individual who is currently outside the United States would not be subject to the $100,000 fee. For example, an individual changing status from F-1 to H-1B who is not outside of the United States would not be subject to the fee.

Payment Collection

5. Which agency will be responsible for collecting the payment?
6. What is the expected timing of the implementation of fee payment?
7. Given that the public has not been instructed on how to pay the fee despite the fact that the requirement is in effect, will petitioners who filed a “new H-1B petition” on or after September 21, 2025 be sent a Request for Evidence for the payment?
8. Can you confirm that implementation mechanisms will include ways to ensure that payment is required only once USCIS determines eligibility for the petition and DOS determines eligibility for the visa? If payment is collected before the eligibility determinations then will the government issue a refund for petitions that are denied or visas are refused?
9. Do you anticipate that the fee will allow for electronic payments and checks?
10. If the payment is made via pay.gov, can you please confirm that the spending limit of $24,999.00 limit will be increased as part of the implementation?

National Interest Exemption

11. Which agency will be responsible for making the National Interest Exemption (NIE) determination?
    1. If USCIS, will the determination be made during intake or adjudication? We would encourage that DHS consider the NIE request at intake and issue an RFE or NOID for the fee if an individual is deemed ineligible for an NIE.
    2. If DOS, will this be made at the initial document review or during an interview with a consular officer?
    3. If CBP, what steps must a traveler take to signal that they are requesting an NIE?
12. What is the exact process and criteria for a company or industry to request a NIE?

Documentation

13. How will receipt of the $100,000 payment be documented?
    1. Will USCIS issue a specific Notice of Action Receipt Notice for this amount (separate from the I-129 receipt notice) or will this payment be reflected in the standard I-129 receipt notice?
    2. Will DOS annotate the visa?
14. How will the grant of an NIE be documented for an individual, an employer, or an industry?
    1. For an individual NIE, will USCIS issue a specific Notice of Action Receipt Notice confirming the grant of the NIE (separate from the I-129 receipt notice) or will the NIE approval be reflected in the standard I-129 receipt notice?
    2. For a company, will specific documentation be provided to demonstrate the grant of an NIE that can be used in all subsequent petitions?
    3. For an industry NIE, will all exempted industries be listed on a publicly-available website?
15. When the H-1B petition or visa is approved, will the approval notice (I-797) and visa have wording specifically stating the petitioner has complied with the Proclamation?
16. How will PIMS, PCQS, CLAIMS3, ELIS and other applicable Department of Homeland Security databases, which are accessible by the Department of State or Customs and Border Protection, be updated to provide information for the specific beneficiary/H-1B Specialty Occupation Worker that either the $100,000 supplemental fee has been paid or a NIE has been granted?

Specific Questions for U.S. Citizenship and Immigration Services

1. Please be advised that AILA has received reports that petitioners and/or the G-28 attorney or accredited representative frequently do not receive a receipt notice and that USCIS will not reissue or issue a duplicate receipt notice. Given the need for documentation that Proclamation has been complied with for an H-1B Specialty Occupation Worker to either apply for a visa and/or enter the United States, what are the USCIS mechanisms to request documentation of satisfaction of the Proclamation requirement?

Specific Questions for the U.S. Customs and Border Protection, H-1B Proclamation

1. Does CBP have some methodology for differentiating between H-1B visa holders who must present proof of the $100k fee payment? What document or information would an H1B visa holder need to show that they made the payment if they’re subject to it?
2. Does the Proclamation apply to individuals in H-1B status who do not have a currently valid H-1B visa but who qualify to use Automatic Visa Revalidation?
3. Please confirm that Canadian citizens who are eligible to enter the U.S. visa waived are not barred entry for lack of ability to present an H-1B visa relating to an approved H-1B petition filed before 9/21/25.

Specific Questions for the U.S. Department of State, H-1B Proclamation

1. The fee payment seems to be required at the petition stage. Does this mean that the fee will not be collected at the time of the visa application?
2. What communications has DOS HQ had with relevant DOS bureaus and offices about how officers will assess whether visa applicants have had a fee paid on their behalf?

Specific Questions for the U.S. Department of Labor, H-1B Proclamation

1. 20 CFR 655.731(c)(9) prohibits an employer from recouping attorney fees and costs and any other expenses “connected to the performance of H-1B program functions which are required to be performed by the employer, e.g., preparation and filing of LCA and H-1B petition.” Can you provide guidance as to whether the $100,000 fee anticipated falls within this prohibition, i.e., can an employee pay for the $100,000?

Related Resources

• Presidential Proclamation on Restriction on Entry of Certain Nonimmigrant (H-1B) Workers
• Practice Alert: Presidential Proclamation Bans Entry of Certain H-1B Nonimmigrants if $100,000 is Not Paid