Search results for: H-1B Amendment

Employers take note: If you file a new Labor Condition Application (LCA) for an H-1B employee to reflect a change in work location that is outside the metropolitan statistical area (MSA) of the original worksite stated on the LCA and corresponding H-1B petition originally filed for the H-1B employee, then you must also file an amended or new H-1B petition to reflect this material change.  Failure to do so will be considered a material deficiency by U.S. Citizenship and Immigration Services (USCIS) and grounds for revocation of the underlying H-1B petition.  Employers should also note that USCIS is expected to make 30,000 administrative H-1B and L-1 site visits this year with this being one of the agency’s top investigative priorities, thereby increasing the need for employers to ensure compliance with this rule for all active H-1B employees.

Continue Reading EFFECTIVE IMMEDIATELY: Restrictive AAO Decision Finds Change of Work Area Requires H-1B Amendment Filing

Recent developments reflect a coordinated policy shift toward increased executive control over H-1B entry and a structural prioritization of higher-wage positions in the annual H-1B cap process. Both developments remain subject to ongoing and potential litigation. In addition to those updates, the immediate impact of a September 2025 presidential proclamation requiring employers to pay a fee for filing an H-1B visa petition is narrower than some have assumed.

DC District Court Upholds Presidential Authority Under INA § 212(f)

In a recent decision in Chamber of Commerce v. U.S. Department of Homeland Security, the U.S. District Court for the District of Columbia upheld a presidential proclamation imposing a $100,000 fee on certain H-1B visa applicants, relying on the president’s broad authority under the Immigration and Nationality Act (INA) § 212(f) to condition the entry of nonimmigrants when deemed to be in the national interest.

Although the case was resolved on cross-motions for summary judgment, the court did not approach the matter as a conventional, fact-intensive Administrative Procedure Act challenge.

Instead, the court framed the dispute as one involving presidential authority and applied a deferential standard of review drawn from Trump v. Hawaii. Under this framework, the court expressly declined to weigh competing economic evidence regarding the H-1B program. The court accepted assertions in the proclamation concerning U.S. worker displacement and labor-market effects at face value and did not evaluate or resolve plaintiffs’ contrary evidence and policy arguments.

The court’s analysis focused on whether Congress, through INA § 212(f), delegated sufficiently broad authority to the president to impose conditions on entry. The court did not assess whether the proclamation accurately described the statutory structure or historical purpose of the H-1B program itself. Once it concluded that such authority existed, the court required only a rational connection between the proclamation’s stated objectives and a legitimate governmental interest.

Limitations on the Proclamation’s Scope

While the court’s decision has generated attention from stakeholders, the current proclamation applies in a limited set of circumstances. President Donald Trump’s administration issued the proclamation on Sept. 19, 2025, and it became effective on Sept. 21, 2025. It applies only to H-1B visa applicants seeking entry from outside the United States and only to cases filed on or after Sept. 21, 2025. It does not apply to change-of-status filings within the United States, H-1B extensions, amendments, or transfers for individuals already in H-1B status, or cap-exempt H-1B petitions. As a result, some employers and H-1B workers will not be directly affected.

Litigation Remains Ongoing

The D.C. court decision may not be the final word on the $100,000 fee. Two additional federal lawsuits challenging the fee remain pending in other jurisdictions, and the Chamber of Commerce has decided to appeal the D.C. court’s decision. These proceedings may result in further clarification—or potential limitation—of executive authority in this area. Accordingly, the legal framework governing the fee remains unsettled, and future court rulings may impact its implementation or scope.

DHS Finalizes Wage-Based Weighted Selection Rule for H-1B Cap Registrations

Separately, the Department of Homeland Security (DHS) has finalized a wage-based weighted selection system for H-1B cap-subject registrations, effective beginning with the FY 2027 registration season. This rule replaces the long-standing random lottery with a system that increases selection odds for higher-wage positions. Under the final rule, registrations tied to Level IV wages will be entered into the selection pool four times, Level III wages three times, Level II wages twice, and Level I wages once.

At the registration stage, employers must disclose the SOC code, area of intended employment, and the highest Occupational Employment and Wage Statistics (OEWS) wage level met or exceeded by the offered wage. For positions involving multiple worksites, the lowest applicable wage level must be used. Wage levels are locked in at the time of registration and must match the subsequently filed petition.

DHS Response to Public Comments

Despite receiving 2,731 public comments, DHS finalized its rule without modifying the regulatory text. The agency rejected requests for exemptions or alternative selection methodologies, emphasizing administrative feasibility, statutory discretion, and policy objectives. DHS concluded that entry-level positions would retain meaningful—though reduced—selection chances; that carve-outs for small businesses, specific industries, or U.S. degree holders would undermine the rule’s goals; and that OEWS wage levels already account for geographic and occupational variation. DHS also emphasized that cap-exempt programs continue to address health care and rural workforce needs.

Projected Selection Outcomes

DHS estimates that under the weighted system, Level I registrations will have an approximate 15.29% chance of selection, compared to 30.58% for Level II, 45.87% for Level III, and 61.16% for Level IV. By comparison, the historical random lottery produced an average selection rate of approximately 29.59% across all wage levels.

Potential for Litigation Challenging the Weighted Selection Rule

Although finalized, the wage-weighted selection rule may also face judicial challenges. Potential claims may include arguments that the INA requires random selection among properly filed petitions, that DHS exceeded its statutory authority, or that the rule violates the Administrative Procedure Act. Any resulting litigation may delay the implementation of DHS’s rule, result in injunctions, or require further agency action.

Practical Takeaways for Employers

Employers may need to avoid over-generalizing the reach of the proclamation, which applies only to certain consular-processed H-1B cases filed on or after Sept. 21, 2025. At the same time, employers should consider planning for continued uncertainty, as both the $100,000 fee and the wage-weighted lottery remain subject to ongoing and potential future litigation. Wage strategy and registration accuracy will be critical if the weighted system proceeds as scheduled, and employers may wish to explore alternative visa options and cap-exempt pathways as part of their FY 2027 workforce planning.

Takeaways

Taken together, these developments reflect an administration-wide emphasis on reshaping the H-1B program through executive authority and regulatory design, particularly at the points of entry and selection. At the same time, multiple legal challenges remain active, and further judicial review may occur.

On Sept. 19, 2025, President Donald Trump signed a proclamation establishing a new $100,000 payment requirement for certain H-1B filings, effective Sept. 21, 2025. While U.S. Citizenship and Immigration Services (USCIS) has since issued clarifying guidance, inconsistent enforcement by U.S. Customs and Border Protection (CBP) is creating questions and, in some cases, improper denials of entry.

The rule’s applicability turns primarily on when the H-1B petition was filed and where the beneficiary is located at the time of filing. The following fact patterns illustrate when the $100,000 payment is required, and when it is not.

1. H-1B petition filed after Sept. 21, 2025, for a beneficiary abroad: Subject to the fee.

This is the baseline rule. Any new H-1B petition filed on or after Sept. 21, 2025, for a beneficiary who is outside the United States and will be admitted under the new petition requires payment of the $100,000 fee.

Example: A U.S. employer files a new H-1B petition on Oct. 1, 2025, for a software engineer residing in India. The payment must accompany the petition.

2. Beneficiary abroad but holding a valid H-1B visa from a prior employer: Subject to the fee.

Even if the beneficiary already holds a valid H-1B visa in their passport from a previous employer, a new petition filed on or after Sept. 21, 2025, for a beneficiary who is abroad will trigger the fee, regardless of when travel occurs or whether this will be the individual’s first entry under that petition.

Example: Company B files a new petition on Oct. 5, 2025, for a candidate in the United Kingdom who still holds a valid H-1B visa from Company A. Because the petition was filed after the new fee’s effective date while the beneficiary was abroad, the $100,000 payment applies.

3. Petition filed before Sept. 21, 2025, regardless of when travel occurs: Not subject to the fee.

Petitions filed before the effective date are exempt, even if approval of the petition or travel occurs afterward. CBP officers have, in some cases, misapplied this rule. Employers may wish to ensure travelers carry proof of the petition filing date.

Example: A petition filed on Sept. 15, 2025, is approved in October 2025 and the worker enters the United States in November 2025. The filing predates the rule, so the payment is not required.

4. H-1B extensions, amendments, and change of employer filings within the United States: Not subject to the fee.

USCIS has confirmed that the new payment “does not change any payments or fees required to be submitted in connection with any H-1B renewals.” USCIS guidance confirmed this logic also applies to change of employer and amendment filings made for workers already in valid H-1B status inside the United States, since no new visa issuance or admission occurs.

Example: A systems analyst in H-1B status with Company A changes jobs to Company B, which files a new H-1B petition on Oct. 3, 2025, while the worker remains in the United States throughout the transaction. The payment is not required.

5. Change of status filings from within the United States: Not subject to the fee.

Beneficiaries changing status (for example, from F-1 to H-1B) who are in the United States when the petition is filed are not subject to the $100,000 payment, even if USCIS approval occurs after Sept. 21, 2025.

Example: A student in F-1 status is selected in the FY 2026 H-1B lottery, and the employer files a change-of-status petition on Sept. 15, 2025. Because the petition was filed before the effective date and the beneficiary remains in the United States, no payment is due.

6. Cap-exempt employer filing after Sept. 21, 2025, for a beneficiary abroad: Subject to the fee.

USCIS has confirmed that universities, nonprofit research institutions, and affiliated entities, though cap-exempt under the H-1B program, are not exempt from the $100,000 payment if filing on or after Sept. 21, 2025, for a beneficiary abroad. The only potential relief is through the proclamation’s national interest exception, which USCIS has stated is “extraordinary in scope” and limited to cases demonstrating a direct and substantial benefit to U.S. national security, critical infrastructure, or public health.

Example: A nonprofit medical research organization files an H-1B petition for a scientist abroad on Oct. 5, 2025. The fee applies unless USCIS grants a national interest exception.

7. Beneficiary in the United States who departs while H-1B petition is pending: Subject to the fee.

If a change of status petition is filed for a beneficiary inside the United States and the beneficiary travels abroad before adjudication, the case will convert to consular notification. USCIS has confirmed such cases will trigger the $100,000 fee. Affected beneficiaries may wish to avoid traveling abroad until their H-1B petition is approved.

Example: An F-1 student with a pending H-1B change of status petition travels abroad for family reasons. If the case converts to consular processing, the fee will apply upon visa issuance.

8. Beneficiary obtains new visa stamp abroad based on an H-1B petition filed before Sept. 21, 2025: Not subject to the fee.

A beneficiary who applies for a new H-1B visa stamp at a U.S. consulate abroad using an H-1B petition that was filed before Sept. 21, 2025, is not required to pay the $100,000 fee upon reentry. The key factor is the petition’s filing date, not the visa issuance date. Some CBP officers have incorrectly applied the rule in these situations.

Example: A beneficiary’s H-1B petition was approved in April 2025. In November 2025, the beneficiary applies for a new visa stamp at the U.S. Consulate in Paris, France and reenters the United States. The $100,000 payment does not apply, because the petition was filed before the new fee’s effective date.

9. Beneficiary abroad after six years in H-1B status due to PERM delay or government shutdown: Subject to the fee.

If an H-1B worker reaches the six-year limit and must depart the United States because a PERM application is on hold or delayed due to a reduction in force or government shutdown, any subsequent petition filed to return to H-1B status after departure is treated as a new petition. If the filing occurs on or after Sept. 21, 2025, and the beneficiary is abroad at the time of filing, the $100,000 payment applies.

Example: A beneficiary in valid H-1B status reaches the six-year limit in August 2025 and departs the United States after a PERM filing is paused. In October 2025, the employer files a new H-1B petition for consular processing so the individual may return once the PERM issue resolves. Because the new petition was filed after Sept. 21 while the worker was abroad, the $100,000 fee applies.

How and When to Pay the $100,000 Fee

USCIS now requires petitioners to submit the $100,000 payment through Pay.gov before filing the H-1B petition. Payment must be scheduled using the online form. Proof of payment, or evidence of an approved exception from the secretary of homeland security, must accompany the H-1B petition at the time of filing. Petitions USCIS considers to be subject to the payment will be denied unless evidence of payment is provided. USCIS has not stated whether it will refund the $100,000 fee if the petition is ultimately denied, withdrawn, or revoked.

Key Takeaways

The $100,000 payment applies to new H-1B petitions filed on or after Sept. 21, 2025, for beneficiaries abroad who will be admitted under that petition, including those filed by cap-exempt institutions. The only potential relief is through the limited national interest exception, which USCIS states in its guidance is reserved for “extraordinary rare circumstances” where “that no American worker is available to fill the role, that the [H-1B] worker does not pose a threat to the security or welfare of the United States, and that requiring the petitioning employer to make the payment on the [H-1B worker’s] behalf would significantly undermine the interests of the United States.”

Extensions, renewals, change of employer filings, amendments, pre-existing petition holders reentering under the same petition, and in-country change of status cases are excluded. Because CBP officers may lack full implementation guidance, even exempt travelers may wish to carry a copy of USCIS’ recent guidance and evidence confirming petition filing date and status.

USCIS has released new implementation guidance on the $100,000 supplemental fee established under the Sept. 19, 2025, Presidential Proclamation “Restriction on Entry of Certain Nonimmigrant Workers.” The update provides clarity for U.S. employers and their HR and legal teams: most domestic H-1B filings will not be subject to the new fee, while exceptions for overseas hires will be approved only in extraordinarily rare circumstances.

Effective Date and Scope

The $100,000 fee applies only to new H-1B petitions filed on or after Sept. 21, 2025, for foreign nationals outside the United States who will require visa issuance and initial entry. Petitions filed before that date are not subject to the payment. USCIS confirmed that change of status petitions for individuals already in the United States, as well as amendments, extensions, and change of employer filings, are exempt. This means the majority of H-1B activity, including extensions and transfers filed domestically, may proceed without additional cost or disruption.

An example of an H-1B petition subject to the $100,000 fee would be a new petition filed by a U.S. employer for a software engineer currently residing in India who will require visa issuance and entry to begin employment in the United States. The petition falls within the scope of the fee because the individual is outside the United States and seeking initial H-1B admission. In comparison, an F-1 student residing in the United States whose U.S. employer files an H-1B change of status petition is not subject to the fee. The student is already in the United States and is not applying for visa issuance or entry from abroad, which makes the filing a domestic petition and, therefore, exempt under the new USCIS guidance.

Exception Requests: ‘Extraordinarily Rare’ and Limited in Scope

USCIS announced that the secretary of homeland security will grant exceptions to the $100,000 fee only in “extraordinarily rare circumstances.” Employers must demonstrate that no American worker is available to fill the position, that the H-1B worker’s employment is in the national interest, that the individual poses no threat to the security or welfare of the United States, and that payment of the fee would significantly undermine U.S. interests. All exception requests, including supporting evidence, must be submitted by email to H1BExceptions@hq.dhs.gov. USCIS emphasized that approvals will be granted sparingly and only when all four criteria are met.

Employer Impact and Strategic Considerations

For HR and legal teams, the update may provide meaningful relief and operational clarity. Domestic filings, including routine extensions, amendments, and transfers, may continue without change. However, employers may wish to evaluate overseas hiring plans and budget accordingly for new H-1B petitions requiring visa issuance abroad. Employers may wish to treat exception requests as a last-resort strategy for mission-critical hires, and these should be supported with detailed documentation aligned to USCIS’s four factors. Employers should also monitor forthcoming DHS guidance expected to address payment procedures and confirmation of receipt for exception submissions.

Policy Context

According to DHS and the White House, the purpose of the $100,000 fee is to ensure that H-1B hiring aligns with high-skill, high-wage positions, and to prioritize U.S. workers. The exemption for domestic filings reflects the government’s acknowledgment that employers operating within the United States already comply with prevailing wage, attestation, and labor condition requirements.

Key Takeaway

The USCIS clarification limits the immediate operational impact of the new rule. For some employers, H-1B processes conducted within the United States remain unaffected. The fee primarily targets new petitions for overseas hires, while exception requests will be available only in rare, well-documented cases. Employers may wish to assess overseas hiring needs, model potential costs, and maintain compliance under the evolving H-1B framework.

The Department of Labor (DOL)’s new Project Firewall has become a much discussed—and misunderstood—development in U.S. business immigration. Announced in September 2025, this initiative signals an increased focus on federal enforcement of the H-1B visa program. While employers are right to take notice, some of the conversation around Project Firewall has been driven by speculation. Below, we seek to separate fact from fiction to help HR leaders, compliance officers, and global mobility teams prepare effectively.

Fact vs. Fiction #1: Project Firewall Is Just Another Routine Audit Program

Fiction: Project Firewall is business as usual—another compliance program with limited reach.

Fact: Project Firewall is one of the most aggressive H-1B enforcement initiative in more than a decade.

  • It enables “secretary-certified investigations,” giving the secretary of labor authority to personally initiate high-priority employer audits.
  • The initiative expands interagency data sharing between DOL, Department of Homeland Security, and Department of State to create a more unified enforcement network.
  • Early indications show targeted audits of employers with patterns of offsite placement, wage-level discrepancies, or unusually high H-1B ratios.

Takeaway: Employers might expect deeper, faster, and more coordinated investigations that go beyond traditional wage-and-hour audits.

Fact vs. Fiction #2: Only Large Tech Companies Are Affected

Fiction: Enforcement will focus solely on major tech firms or outsourcing companies.

Fact: Project Firewall is industry neutral. While data-driven targeting may prioritize large users of H-1Bs, smaller employers may be equally exposed if red flags appear—such as inconsistent job titles, frequent amendments, or third-party worksite placements.

Takeaway: Mid-sized and niche employers (including startups and consulting firms) should not assume immunity.

Fact vs. Fiction #3: Employers May ‘Fix’ Compliance Issues Later

Fiction: If issues arise, they may be corrected retroactively by paying fines.

Fact: Under Project Firewall, noncompliance may lead to debarment, not just civil penalties, impacting employers’ ability to sponsor new H-1B visas in the future.

  • Employers found to have committed serious or willful violations may be barred from filing H-1B petitions for a period of years.
  • Back-wage orders, public disclosure, and potential referrals to USCIS for status revocation are possible penalties.

Takeaway: Compliance must be proactive—rectifying issues after a DOL inquiry may no longer be sufficient.

Preparing for the Firewall Era: Practical Considerations for Employers

  1. Conduct an internal H-1B audit. Review LCAs, job titles, and wage levels for consistency and accuracy.
  2. Document everything. Keep records of worksite locations, job duties, and changes in employment conditions.
  3. Train HR and project managers. Ensure everyone involved understands LCA posting, amendment triggers, and documentation rules.
  4. Monitor third-party placements. Ensure vendors and clients understand and adhere to compliance obligations.

Conclusion

Project Firewall represents a new enforcement paradigm for employment-based immigration. The era of “checklist compliance” is over—now, employers must demonstrate active, documented adherence to the spirit and letter of H-1B regulations. The right preparation may help companies navigate this environment confidently, protect their foreign talent pipelines, and reduce exposure to costly investigations.

The Department of Homeland Security (DHS) has published a proposed rule that may reshape the H-1B registration and selection process. These changes, if finalized, would have implications for employers seeking to hire skilled foreign workers under the H-1B category. Here’s what employers should keep in mind about the proposed modifications and how they may affect organizations.

Current System: The number of first-time H-1B petitions usually exceed the year’s quota and are selected based on a random drawing. The system is beneficiary-centered, allowing each prospective H-1B worker one entry.

Proposed Change: The H-1B selection would shift from a purely random lottery to a weighted lottery that favors higher-paid positions while still giving all wage levels a chance.

How the Weighting Works

The number of each beneficiary’s lottery entries is determined by their offered wage compared to the existing the DOL Occupational Employment and Wage Statistics (OEWS) wage levels (I–IV) for the beneficiary occupational classification in the area of employment.

Here’s how it works:

Wage Level Determination Process

  1. SOC Code Assignment: The employer identifies the appropriate Standard Occupational Classification (SOC) code that best matches the job duties and requirements
  2. Geographic Location: The wage is determined based on the specific geographic area where the work would be performed, as well as
  3. Skill/Experience Level: The position is classified into one of four wage levels based on the minimum job requirements:
    • Level I (17th percentile): Entry-level positions requiring basic understanding of duties and close supervision
    • Level II (34th percentile): Qualified positions requiring some experience and limited judgment
    • Level III (50th percentile): Experienced positions requiring sound understanding and considerable judgment
    • Level IV (67th percentile): Fully competent positions requiring advanced knowledge and wide latitude for judgment

Lottery Entries by Level

If the offered salary is equal or higher than:

  • Level IV: the beneficiary would receive four entries in the lottery
  • Level III: three entries in the lottery
  • Level II: two entries in the lottery
  • Level I: one entry in the lottery

Other Key Points

  • The proposed rule suggests that the resulting number of entries may not be just about the salary amount, but rather it is about how the job requirements and offered wage compare to the DOL’s statistical data for that specific occupation in that geographic area. A high salary for a Level I position does not automatically make it Level III or IV; the job duties and requirements must match the higher skill level definitions.
  • If a foreign national receives multiple H-1B cap sponsorship offers from different employers, the number of entries allowed to such beneficiary would be based on the lowest wage level offered of all petitions.

Impact: While not eliminating randomness entirely, employers offering higher wages may have better odds of selection. Specifically, Level IV positions would be four times more likely to be selected than Level I positions.

Implications for Employers

Increased Competition and Costs

The proposed wage-based selection system aims to drive up compensation packages as employers compete for priority selection. The proposed rule’s economic analysis provides specific cost estimates.

Increased Administrative Burden

  • Time requirements: USCIS estimates each H-1B registration would take approximately one hour to complete (increased from current estimates due to additional wage documentation requirements).
  • Wage determination research: Employers must spend additional time researching and documenting the appropriate OEWS wage level for each position.
  • SOC code verification: Enhanced requirements for accurate SOC code selection and justification.
  • Multi-location analysis: For positions with multiple worksites, employers must analyze and document wage levels across all locations.

Higher Labor Costs

  • Wage level competition: To improve selection odds, employers may wish to increase offered salaries from Level I to Level III or IV positions.
  • Market pressure: As more employers offer higher wages to gain lottery advantages, overall market compensation may increase.
  • Strategic salary adjustments: The rule estimates that many employers may voluntarily increase wages to move from one lottery entry (Level I) to three or four entries (Level III/IV).

Additional Compliance Costs

  • Documentation maintenance: Employers must maintain and store wage source documentation (such as DOL wage search printouts) for each registration.
  • Legal consultation: Many employers may require additional legal guidance to ensure proper wage level determinations and SOC code classifications.
  • Enhanced record-keeping: New requirements for maintaining detailed documentation supporting each registration’s wage determination and job requirements.
  • Verification processes: Additional time and resources may be needed to ensure all registration information is accurate and supportable.

Organizations may wish to budget for these increased administrative, legal, and labor costs when planning their H-1B strategies.

Strategic Planning Considerations

Employers may wish to be more strategic about their H-1B submissions:

  • Consider offering Level III or IV wages to potentially improve selection odds.
  • Review SOC classifications to support the offered wage while ensuring accuracy / reasonable nexus between the occupation and the offered role.
  • Cannot rely on multiple submissions for the same candidate.
  • Advanced degree candidates benefit doubly – they get both the weighted system advantage and access to the separate 20,000 visa pool.
  • Entry-level positions remain eligible but would face reduced selection odds with only one lottery entry.
  • Multiple worksite/role considerations – remember that the lowest applicable wage level would be used when multiple worksites are involved.
  • Future roles planning – USCIS may deny subsequent amendment petitions containing lower wage offers, as well as revoke the initial petition approvals, if they find that the conditions of initial offer were determined primarily to increase the chances of selection.

Fraud Prevention and Penalties

The proposed rule strengthens enforcement mechanisms:

  • Enhanced verification processes during registration and petition filing;
  • Potential suspension from H-1B program participation for fraudulent activity;
  • Increased scrutiny of registrations that appear inconsistent with employer size or business needs;
  • Cross-referencing with other government databases to verify employer legitimacy; and
  • Whistleblower protections for reporting fraudulent activity.

Timeline and Implementation

  • Public Comment Period: The proposed rule is open for public comment for 30 days from publication in the Federal Register.
  • Effective Date: If finalized, the rule would normally become effective 60 days after the final rule’s publication.
  • First Application: The new system may first apply to the FY 2027 H-1B cap season (registration period may end in March 2026).
  • Transition Considerations: USCIS will provide detailed guidance on system changes and any transition provisions.

Practical Considerations for Employers

Immediate Steps

  1. Review current H-1B strategy and assess impact of wage-based selection.
  2. Analyze wage levels for planned H-1B positions.
  3. Evaluate budget implications of offering higher wage levels.
  4. Consider submitting comments during the public comment period.

Long-Term Planning

  1. Develop alternative talent strategies that do not rely solely on H-1B workers.
  2. Explore other visa categories (TN, O-1, L-1, etc.) for key employees.
  3. Consider timing of H-1B submissions based on business priorities.
  4. Strengthen relationships with immigration counsel for strategic guidance.

Industry Impact

These changes may affect different industries and company sizes differently:

  • Technology companies that traditionally rely heavily on H-1B workers may face increased costs, but may be better positioned to offer higher wages.
  • Consulting firms that historically submitted multiple registrations for the same candidates may see reduced success rates.
  • Small businesses may face particular challenges competing against larger organizations offering higher wages, though the weighted system still gives them a chance.
  • Entry-level/college hiring programs may be significantly impacted as Level I positions would have only one lottery entry compared to four for Level IV positions.
  • Professional services firms may need to restructure compensation packages to remain competitive.

Small Business Considerations

The proposed rule acknowledges potential disproportionate impacts on small businesses, which may have less flexibility to increase wages to Level III or IV. However, the rule maintains that all wage levels remain eligible, preserving opportunities for smaller employers while incentivizing higher-skilled positions.

Conclusion

The proposed H-1B weighted selection system represents a significant shift from the current random lottery to a system that rewards higher wages and higher-skill positions, while still maintaining an element of chance for all wage levels. While aimed at improving program integrity and prioritizing more skilled positions, these changes might require employers to fundamentally rethink their H-1B strategies.

Bottom line: The new weighted system rewards higher wages and higher skill positions. Employers should evaluate their H-1B hiring strategy to maximize their chances under the new rules.

Key considerations include assessing wage structures, budgeting for potentially increased costs, ensuring accurate SOC code classifications, special attention to the standardization of job descriptions, as well as talent acquisition and recordkeeping practices and developing alternative talent acquisition strategies. Entry-level positions may remain eligible but might face significantly reduced odds compared to higher-wage positions.

On Sept. 19, 2025, President Trump signed a Presidential Proclamation introducing a mandatory $100,000.00 one-time fee for all “new” H-1B petitions filed on or after Sept. 21, 2025. This represents a significant increase to H-1B filing costs and may substantially affect employers’ immigration strategies and budgets. The fee is effective for 12 months, until Sept. 21, 2026 (unless extended).

Key Takeaway: Petitions submitted prior to Sept. 21, 2025, are unaffected by this fee increase. The practical impact may vary significantly between cap-subject and cap-exempt employers due to regulatory timing restrictions and uncertainty over petition classifications.

Critical Implementation Gap: While the fee is now in effect, employers currently have no guidance on how to make the $100,000 payment.

Cap-exempt employers (universities, nonprofits, research organizations) who file “new” petitions after Sept. 21, 2025, including both change of status and consular notification petitions, will need to either pay the $100,000 fee or argue they meet national interest exception criteria.

IMMEDIATE ACTION REQUIRED

A. For Employers with Pending H-1B Filings

Petitions filed before Sept. 21, 2025, are not subject to any additional fees and are unaffected by this proclamation. However, all “new” petitions filed on or after Sept. 21, 2025, must include the $100,000 fee unless exempted.

U.S. Citizenship and Immigration Services (USCIS) has officially confirmed that renewal petitions are exempt from the fee. However, the status of change of employer and amendment petitions, which employers must file every time there is a substantial change in the H-1B worker’s job duties or work conditions, or if the worker moves to another employer, respectively, remains unclear, as it depends on whether these are classified as exempt “renewals” or fee-subject “new” petitions.

The FY2026 H-1B lottery impacts employers, as all participants will be subject to the new fee unless they obtain a national interest exception from Department of Homeland Security (DHS).

B. Understanding the Practical Scope

Due to regulatory timing restrictions, cap-subject employers cannot file new H-1B petitions, either consular or change of status petitions, outside of annual lottery seasons. The next opportunity for such filings is the FY2026 cap season, with registration occurring in March 2026 and petition filing from April through July 2026.

This timing limitation creates a potentially narrow scope for the fee’s impact on cap-subject employers. If USCIS deems amendments and change of employer petitions “renewals,” then for cap-subject employers, the fee would only impact annual cap lottery petitions rather than ongoing H-1B activity.

Budget Planning Approach: Given the potential for limited scope, employers may wish to focus on running H-1B lottery budget analysis rather than immediately overhauling entire immigration budgets. The impact may be concentrated primarily on annual cap petitions instead of day-to-day H-1B operations. However, broader immigration budget revisions may be needed pending clarification of how USCIS defines “renewal” versus “new” petitions.

C. Critical Implementation Issue

Payment of Fee: While the $100,000 fee is now in effect, employers currently have no official guidance on payment methods, processing procedures, or verification requirements. This creates immediate practical challenges for any employer needing to file “new” H-1B petitions after Sept. 21, 2025. Employers may wish to assess which positions justify the increased cost and consider alternative visa categories where appropriate.

KEY PROVISIONS

Scope and Applicability

  • Applies to “new” H-1B petitions filed Sept. 21, 2025, or later.
  • Uncertain scope: Amendment and change of employer petitions may be classified as exempt “renewals” or fee-subject “new” petitions.
  • Current H-1B visa holders can continue to use their visas for international travel.
  • Cap-subject timing restriction: Due to regulatory limitations, cap-subject employers cannot file new change of status petitions outside annual lottery seasons (the next opportunity to file “new” cap-subject petitions will be under the FY2026 cap: registration March 2026, filing April-July 2026).

Fee Structure

  • Amount: $100,000.00 per “new” petition (one-time fee).
  • Payer: H-1B employer/petitioner.
  • Payment: Must accompany or supplement the petition.
  • Verification: Required by Department of State (DOS) and DHS/USCIS.

Duration

  • Effective for 12 months, until Sept. 21, 2026.
  • May be extended beyond initial period.

National Interest Exceptions

  • DHS may grant case-by-case exceptions deemed necessary for national interest.
  • May apply to individual workers, specific employers, or entire industries.
  • Potential qualifying sectors include defense, health care, and STEM research.

Additional Directives

  • Department of Labor (DOL) directed to revise prevailing wage levels.
  • Agencies must prioritize higher-paid, highly skilled H-1B workers.

LEGAL CONSIDERATIONS

Litigation Risk

  • Legal challenges to the proclamation’s constitutionality and fee-setting authority are expected.
  • Possible outcomes include injunctions or policy revisions.
  • Employers should monitor legal developments closely.
  • HIGH LEGAL RISK: Multiple sources indicate legal challenges are expected given the unusual method of implementing such a significant fee increase without the typical rulemaking process.

FREQUENTLY ASKED QUESTIONS

Updated with Official USCIS Guidance and DOS and White House Clarifications

Q: Are current H-1B workers in the United States affected?

A: OFFICIAL: No. Current H-1B holders are not impacted and can continue to travel freely in and out of the United States without being subject to the fee requirement. The restriction applies only to individuals seeking to enter or re-enter the United States after Sept. 21, 2025 on “new” petitions.

Q: Does the new fee apply to H-1B petitions filed before Sept. 21, 2025?

A: OFFICIAL: No. Petitions filed before Sept. 21, 2025, are exempt from the additional fee. This includes the FY2025 lottery winners, and any other petitions submitted before the deadline.

Q: Is this a one-time or recurring annual fee?

A: OFFICIAL: The White House press secretary has confirmed this is a one-time fee, not an annual payment. This clarification corrects earlier conflicting statements.

Q: Does the fee apply to H-1B renewals and extensions?

A: OFFICIAL: No. USCIS has confirmed the fee does NOT apply to renewal or extension petitions. However, it’s still unclear whether amendments or change of employer petitions are considered “new petitions” or “renewals.” NOTE: Under U.S. immigration law, “renewal” strictly refers to obtaining new visa stamps at U.S. consulates abroad, while “extension” refers to extending immigration status through I-129 petitions filed with USCIS. This technical distinction adds confusion to interpreting the proclamation’s scope.

Q: Can current H-1B holders travel internationally?

A: OFFICIAL: Yes. USCIS guidance explicitly states that holders of current H-1B visas can continue to travel in and out of the United States without restriction.

Q: What about H-1B amendments and change of employer petitions filed after Sept. 21, 2025?

A: UNCLEAR STATUS: Whether these require the $100,000 fee depends on whether they’re classified as “new petitions” (subject to fee) or “renewals” (exempt). USCIS has not clarified this critical distinction. Until USCIS provides guidance on whether change of employer or amendment petitions filed after Sept. 21, 2025, are considered “new” petitions, it is unknown whether the new fee is required.

Q: Does visa stamping abroad trigger the $100,000 fee?

A: NO, if petition filed before deadline: If a worker traveled abroad for visa stamping based on any petition (extension, change of employer, or initial petition) filed BEFORE Sept. 21, 2025, obtaining the new H-1B visa stamp did NOT trigger the $100,000 fee. The fee requirement is tied to the petition filing date, not the visa stamping date.

Q: Does this affect the FY2026 H-1B lottery?

A: OFFICIAL: Yes. USCIS has confirmed that the 2026 lottery will require the $100,000 payment (unless it grants a national interest exception), as this will be considered a “new” petition. However, only “new” H-1B petitions are subject to the fee – “renewal” petitions are explicitly exempt, and the status of amendments and change of employer petitions remains unclear.

Q: When and where must the $100,000 fee be paid?

A: MAJOR IMPLEMENTATION GAP: While the proclamation states the fee must be paid to the U.S. government and accompany or supplement the petition, no official guidance exists on how employers can make this payment. Employers must retain proof of payment, and DOS will verify payment before issuing visas at U.S. consulates abroad, but the exact payment process, methods, verification procedures, and integration with existing USCIS filing systems remain unclear. This creates immediate practical challenges for any employer needing to file “new” H-1B petitions now.

Q: Who is responsible for paying the fee?

A: The employer/petitioner is responsible for the fee. It’s unclear whether costs can be passed on to employees.

Q: How do we apply for a national interest exception?

A: STILL UNCLEAR: There’s no guidance yet on eligibility criteria, application procedures, or required documentation for national interest exceptions that may apply to individual workers, companies, or entire industries. Cap-exempt filing organizations (universities, nonprofit research institutions, government research organizations) may have an argument for an exemption from the new fee under this provision, but we await official guidance on the standards and criteria that will be applied.

Q: Does this affect cap-exempt employers (universities, nonprofits)?

A: CLARIFIED: Cap-exempt organizations that file new H-1B petitions after Sept. 21, 2025, will be subject to the $100,000 fee, as the proclamation does not specifically exempt them. However, these organizations may have an argument for national interest exemptions (see previous question for details).

Q: What constitutes a “renewal” versus a “new” petition?

A: PARTIALLY CLARIFIED: USCIS has confirmed that renewal petitions are exempt from the fee. However, it remains unclear whether amendments and change of employer petitions are considered “new petitions” subject to the fee or “renewals” that are exempt. CRITICAL IMPLICATION: Cap-subject petitioners cannot file new change of status H-1B petitions outside of the annual lottery season due to regulatory timing restrictions (the next opportunity for cap-subject employers to file “new” petitions will be under the FY2026 cap: registration March 2026, filing April-July 2026). Therefore, should “renewal” be interpreted broadly to include change of employer petitions and amendment petitions, then for cap-subject employers the fee would only impact annual H-1B cap lottery petitions rather than ongoing H-1B activity. This interpretation would dramatically limit the practical impact of the fee primarily to new entrants through the annual lottery system.

OUTSTANDING QUESTIONS

Updated to reflect official clarifications

Despite official guidance from USCIS and DOS and White House clarifications, several critical aspects remain unclear:

Fee Administration (URGENT)

  • CRITICAL IMPLEMENTATION GAP: No guidance on payment methods or procedures for the $100,000 fee.
  • Processing timelines and integration with existing USCIS filing systems.
  • Exact payment verification procedures at consulates and ports of entry.Updated USCIS forms and filing instructions.
  • IMMEDIATE IMPACT: Employers needing to file “new” petitions after Sept. 21, 2025, currently have no way to comply with the fee requirement.

National Interest Exceptions

  • Eligibility criteria and application process.
  • Required documentation and approval timelines.
  • Industry-specific guidance and qualifying sectors.

Petition Classifications (Partially Clarified)

  • CLARIFIED: Renewals and extensions are exempt.
  • STILL UNCLEAR: Treatment of amendments and change of employer petitions filed after Sept. 21, 2025.

Implementation Details (CRITICAL GAPS)

  • URGENT: How employers will make the $100,000 payment to the government (no guidance provided).
  • Timeline for processing fee payments and verification systems.
  • Impact on pending cases and visa stamping abroad.
  • Integration with existing USCIS petition filing procedures.

 OFFICIAL GUIDANCE RELEASED

The following agencies have issued implementation guidance:

  • USCIS: H-1B FAQ and Implementation Memo (PDF).
  • U.S. Customs and Border Protection (CBP): CBP Guidance.
  • DOS: Guidance issued to all consular offices.
  • White House: Press secretary clarification that fee is one-time, not annual.

EMPLOYER CONSIDERATIONS

  • Immediate Review: Assess all pending and planned H-1B cases.
  • Monitor Payment Guidance: Urgently track for official guidance on how to make the $100,000 payment, as this critical implementation detail remains undefined.
  • Legal Monitoring: Track litigation developments that may affect implementation.
  • Documentation: Maintain detailed records of all filing dates and fee payments.

This GT Alert has been updated to include official guidance from USCIS (Sept. 20, 2025) and DOS, and White House clarifications. Given the ongoing legal uncertainty and evolving implementation details, employers should continue monitoring for updates.

Navigating Immigration and Employment Law Requirements in the Remote Work Era

The shift toward remote and hybrid work arrangements has created compliance challenges for U.S. employers sponsoring foreign workers under H-1B, E-3, and H-1B1 classifications. While remote work offers flexibility and expanded talent pools, it introduces complex legal obligations that, if overlooked, may result in substantial penalties and backpay awards, as well as possibly jeopardizing employees’ immigration status.

The Fundamental Requirement: Every Work Location Must Be Covered

Under U.S. Department of Labor (DOL) regulations, every location where an H-1B, E-3, or H-1B1 employee performs work must be listed on a Labor Condition Application (LCA) and covered by the underlying petition. This includes the employee’s home office when working remotely.

When an employee works from home, their residence becomes a “worksite” for immigration and labor law purposes. This means:

  • The home address must be listed as a worksite on the LCA
  • The prevailing wage determination must account for the geographic location of the home office
  • Public Access File requirements apply to the home location
  • LCA posting obligations are triggered

The Growing Challenge: Unreported Address Changes

A compliance gap may emerge if employees relocate during their H-1B validity period without informing their employer’s immigration team. This seemingly minor oversight may create cascading compliance complications.

When Employees Move Within the Same Metropolitan Statistical Area (MSA)

If an employee relocates within the same MSA as originally listed on their LCA:

Required Action: The employer must post a notice in two conspicuous places at the employee’s new residence, where they work remotely, for 10 business days and update the respective Public Access File.

Common Failure: HR teams update payroll records and internal systems but fail to notify immigration counsel, resulting in a lack of required postings at the new location and outdated, deficient Public Access File documentation.

Consequences:

  • DOL violations and potential civil fines
  • Wage and hour compliance deficiencies
  • Exposure to whistleblower complaints
  • Potential backpay obligations

When Employees Move Outside the Original MSA

If an employee relocates outside the MSA covered by their current LCA:

Required Action: File an amended H-1B petition with a new LCA covering the new geographic area before the employee begins work at the new location.

Common Failure: Employees relocate and continue working without the employer’s knowledge, creating an immediate status violation.

Consequences:

  • Employee is violating the terms of their H-1B status
  • Difficulty obtaining future extensions or renewals
  • Potential bars to future immigration benefits
  • Employer exposure to willful violator status
  • Potentially significant monetary penalties and backpay awards

Wage and Hour Compliance Risks

The DOL’s enforcement focus on prevailing wage compliance makes unreported address changes particularly precarious. Key risks include:

Prevailing Wage Violations

  • Different geographic areas have different prevailing wage rates that may differ greatly
  • Failure to obtain a new LCA containing a prevailing wage determination for the new location may result in underpayment
  • Backpay calculations may extend across multiple years

Record-Keeping Deficiencies

  • Public Access Files must be maintained and cover each worksite, including home office locations
  • Missing documentation for home office locations creates automatic violations
  • DOL and Fraud Detection and National Security (FDNS) audits often focus on remote work arrangements, including in-person visits

Case Study: The Hidden Costs of Poor Communication

Consider the following real-world scenario that illustrates the consequences of inadequate address change procedures:

The Situation: Sarah, a software engineer in H-1B status, was initially hired to work in Dallas, Texas, with a Level 4 prevailing wage determination of $156,998 annually. Her employer’s remote work policy allowed employees to work from home, and her LCA properly listed her Dallas residence as a worksite.

The Move: One year into her three-year H-1B validity period, Sarah relocated to San Francisco to be closer to family. She promptly informed HR and payroll of her address change, and her W-2 forms began reflecting California state taxes. However, the payroll team failed to notify the company’s immigration team about the relocation.

The Compliance Failure: Sarah’s move from Dallas to San Francisco represented a change to a different MSA with a substantially higher prevailing wage, approximately $213,512 for a Level 4 software engineer position in the San Francisco area, an annual difference of $56,514. Under DOL regulations, this required:

  • Filing a new LCA with the higher prevailing wage determination
  • Filing an amended H-1B petition before Sarah started working from her San Francisco residence
  • Adjusting Sarah’s salary to meet the new required wage (the higher of actual wage and prevailing wage level)

None of these steps were taken because the company’s immigration team was unaware of the move.

The Discovery: Two years later, when Sarah’s employer filed her H-1B extension petition, U.S. Citizenship and Immigration Services (USCIS) issued a Request for Evidence (RFE). USCIS had cross-referenced Sarah’s petition against her California state tax records and identified the discrepancy between her approved work location (Dallas) and her actual work location (San Francisco).

The Consequences: The RFE created multiple serious problems:

  • Immediate Status Risk: Sarah’s continued work in San Francisco without proper LCA coverage violates the terms of her H-1B status
  • Wage Violations: Sarah had been underpaid by approximately $56,514 annually for two years relative to the San Francisco prevailing wage
  • Extension Jeopardy: The extension petition faced potential denial due to the compliance violations
  • Backpay Exposure: The employer faced potential liability of $113,028 in prevailing wage underpayments
  • Future Petition Risk: The violation could impact Sarah’s ability to obtain future H-1B extensions or to adjust status to permanent residence

The Resolution Costs: To address the violation, the employer had to:

  • Engage specialized immigration counsel for RFE response preparation
  • File corrective amended petitions and LCAs
  • Pay prevailing wage backpay to Sarah
  • Implement enhanced compliance procedures company-wide
  • Face increased scrutiny from authorities on its immigration program

This case demonstrates how a simple communication breakdown can escalate into a six-figure compliance problem with lasting immigration consequences.

How These Violations Are Discovered

The increasing sophistication of government enforcement mechanisms means that address change violations are more likely to be detected than ever before. Employers should be aware of the following discovery methods:

FDNS Site Visits

The FDNS unit conducts unannounced site visits to verify petition information. During these visits, inspecting officers may discover that employees have relocated to new addresses without proper LCA amendments or H-1B petition updates. FDNS officers are specifically trained to identify compliance gaps and will document any discrepancies between approved work locations and actual employee residences.

USCIS Cross-Referencing During Petition Adjudication

As demonstrated in the software engineer case study above, USCIS increasingly cross-references employee state tax filings against residential addresses on record during the adjudication of new H-1B filings, including amendments and extensions. This data matching has become more sophisticated and systematic, making it more likely that geographic discrepancies will be identified during routine petition processing.

Biometric RFEs and Address Verification

USCIS is issuing RFEs requiring H-1B employees to complete biometrics appointments across multiple petition types, but mostly on H-1B petitions and I-140 immigrant petitions, even though these cases do not typically require biometric collection. During these appointments, USCIS captures current address information and cross-references it against the approved petition locations. This enforcement mechanism allows USCIS to identify address changes that were never reported to immigration authorities, creating an additional layer of compliance verification that employers may not be unprepared for.

The expansion of biometric RFEs to I-140 immigrant petitions demonstrates that USCIS is using address verification as a compliance tool across the entire immigration continuum. Employees who may have had compliant H-1B petitions initially but developed violations during the validity period may find their permanent residence applications jeopardized when USCIS discovers unreported address changes during I-140 adjudication.

ICE I-9 Audits

During Form I-9 compliance audits, Immigration and Customs Enforcement (ICE) may identify H-1B deficiencies when reviewing employee documentation. While this discovery method is currently less common, employers should anticipate increased scrutiny as compliance enforcement becomes stricter and more integrated across agencies. ICE auditors are trained to spot immigration status violations that may not be immediately apparent from I-9 documentation alone.

Employee Self-Reporting

H-1B employees who become aware of prevailing wage requirements may file complaints when they realize they are being underpaid due to their employer’s failure to update LCAs for new work locations. These complaints may trigger DOL wage and hour investigations and result in significant penalties. Educated employees increasingly understand their rights and may seek legal counsel when they suspect wage violations.

Department of State Referrals

During consular visa interviews for visa renewals or family member applications, consular officers may identify discrepancies between an employee’s stated residential address and the work location listed on their H-1B petition. While currently uncommon, this discovery method may become more frequent as consular officers receive enhanced training on H-1B compliance issues and as information sharing between agencies improves.

H-1B Change of Employer Petition Complications

Another discovery method involves H-1B change of employer petitions (portability cases). When an employee transfers to a new employer, USCIS may identify prior compliance violations during the adjudication process by cross-referencing the employee’s state tax filings against the previous employer’s H-1B petition.

The Problem for New Employers: This situation creates an impossible burden for new employers because they typically do not have access to the prior employer’s complete H-1B petition file. The new employer cannot reasonably identify potential compliance issues before filing their change of employer petition, yet they may face petition denials or RFEs based on the prior employer’s failures.

Heightened Risk During Grace Periods: This issue is particularly acute for employees in the 60-day grace period following termination. USCIS has significantly increased its use of Notices to Appear (NTAs) for individuals found to be no longer maintaining legal status. When a compliance violation from a prior employer is discovered during a change of employer petition, it may trigger NTA issuance even if:

  • The current employee had little to no control over the prior employer’s compliance failures
  • The new employer performed reasonable due diligence but could not access the relevant information
  • The violation may have occurred years earlier and remained undetected

Practical Implications:

  • New employers may unknowingly inherit compliance problems caused by an employee’s prior employer
  • Employees face increased risk of removal proceedings for violations beyond their control
  • The traditional assumption that change of employer petitions are routine filings no longer holds
  • Employers should consider enhancing due diligence and vetting processes despite limited access to prior petition information

Risk to Prior Employers: The compliance violations don’t disappear when an employee changes employers. Former employers remain exposed to liability when H-1B deficiencies are discovered during change of employer adjudications. Once a former employee learns that their previous H-1B petition was deficient due to an unreported address change with a higher prevailing wage, they may pursue backpay claims against their former employer. These claims can extend back several years and involve substantial amounts, particularly when the wage differential between geographic areas is significant. The former employer cannot cure the violation since the employee has already departed, leaving them fully exposed to the financial consequences of their compliance failure.

Whistleblower Reports

Current or former employees, competitors, or other third parties may report suspected violations to DOL or USCIS. The anonymous nature of many reporting mechanisms makes this an ongoing risk for noncompliant employers.

The key takeaway is that these violations are no longer hidden in administrative silos. Government agencies are increasingly sharing information and using sophisticated data matching techniques that make discovery more likely and more systematic than in the past.

Beyond Geography: Wage Level Classification Risks

While geographic-based prevailing wage violations represent a significant compliance risk, employers face additional exposure from incorrectly classifying the job classification and the wage level for H-1B positions. This issue, compounded with the address change problem, may create further liability.

The Four-Level System Challenge

The prevailing wage system classifies positions into four levels based on experience, education, and job complexity:

  • Level 1: Entry-level positions requiring basic understanding
  • Level 2: Qualified positions requiring sound understanding
  • Level 3: Experienced positions requiring good understanding
  • Level 4: Fully competent positions requiring excellent understanding

Common Misclassification Scenarios

Many employers face two distinct types of classification errors that may result in significant compliance violations:

Wage Level Misclassification

Employers may under-classify positions to reduce labor costs, selecting Level 1 or Level 2 wages when the position actually requires Level 3 or Level 4 compensation.

Job Classification Misclassification

Beyond wage levels, employers often select incorrect job classifications entirely. The duties and responsibilities of different positions carry substantially different prevailing wages, even within similar fields. For example:

Similar but Distinct Classifications:

  • A “Systems Analyst” classification carries a lower prevailing wage than a “Software Engineer” classification, despite overlapping responsibilities
  • “Computer Programmer” wages differ significantly from “Software Developer” wages
  • “Database Administrator” and “Computer Systems Analyst” have different wage requirements

Bachelor’s Degree Requirement Violations: The H-1B category fundamentally requires that the proposed U.S. assignment necessitate at least a bachelor’s-level education. Selecting job classifications that require only an associate’s degree creates an immediate compliance concern. For example, selecting “Computer Network Support Specialists” for an employee performing bachelor’s-level work, even though DOL data indicates the position requires an associate’s degree, may result in:

  • Denial of the H-1B petition for failing to meet specialty occupation requirements
  • Significant backpay awards if the misclassification is discovered during employment
  • Potential willful violator findings if the pattern is systemic
  • Review of an employer’s entire immigration program

These job classification errors may create several compounding problems.

Compounding Geographic Issues: When an employee moves to a higher-wage area and the employer has made both wage level and job classification errors, the underpayment exposure multiplies. An employee initially classified as a Level 1 “Computer Network Support Specialist” in Dallas who should have been a Level 4 “Software Engineer,” then moves to San Francisco, faces a triple violation (geographic change, incorrect wage level, and incorrect job classification) potentially creating enormous backpay liability.

Audit Vulnerability: DOL audits specifically examine whether both the job classification and wage level selection match the actual job requirements. Auditors review:

  • Job descriptions and actual duties performed against standard occupational classifications
  • Required qualifications versus employee credentials and degree requirements
  • Supervision levels and decision-making authority
  • Comparison with similar positions at the employer and industry standards

Systematic Violations: Unlike address changes that affect individual employees, both job classification and wage level misclassification often reflect company-wide practices, potentially affecting multiple H-1B employees simultaneously and creating backpay exposure across entire departments or job categories.

Civil Penalty Exposure

Wage level violations carry the same penalty structure as geographic wage violations under 20 CFR 655.810 (2025 penalty amounts as adjusted by Federal Register, Vol. 90, No. 8, Jan. 10, 2025):

  • Willful Violations: Up to $67,367 per violation plus backpay
  • Substantial Failure: Up to $9,624 per violation plus backpay
  • Technical Violations: Up to $2,364 per violation plus backpay

When combined with multi-year underpayments across multiple employees, these penalties can reach seven figures for employers with systematic misclassification practices.

Program Debarment

For employers with systemic, widespread violations, the DOL can impose the most severe penalty available: debarment from the H-1B program under INA § 212(n)(2). This sanction prohibits an employer from filing any H-1B petitions for up to three years.

Debarment Requirements: Under DOL Fact Sheet #62S, debarment requires formal enforcement proceedings with specific findings:

  • A finding of violation must be entered in either a DOL proceeding under INA §212(n)(2) or a Department of Justice proceeding under INA §212(n)(5)
  • The agency must find that the employer committed either a willful failure or misrepresentation of material fact involving at least two Labor Condition Application attestations
  • The violation must have occurred after Oct. 21, 1998

Additional Consequences:

  • Debarred employers are subject to random DOL investigations for up to five years from the date of willful violator determination
  • Complete prohibition on filing new H-1B petitions during the debarment period

Business Impact: For technology companies, consulting firms, health care organizations, and other employers that rely heavily on H-1B workers, debarment can be business-threatening. The consequences include:

  • Complete inability to hire new international talent
  • Loss of competitive advantage in global talent acquisition
  • Potential departure of existing H-1B employees who cannot obtain extensions
  • Damage to employer brand and reputation in international markets
  • Disruption of long-term business planning and growth strategies

No Workarounds: Unlike monetary penalties that can be paid, debarment cannot be cured through compliance efforts during the prohibition period. Employers facing debarment must demonstrate extraordinary circumstances to avoid or reduce the sanction period.

Inadequate documentation makes it difficult to defend wage level selections during audits and increases the likelihood of violations being classified as “willful” rather than technical.

Additional Compliance Considerations for Employers

Establish Clear Policies

  • Require employees to report any address changes immediately
  • Include address change obligations in employment agreements and handbook policies
  • Create specific procedures for remote work approvals

Implement Monitoring Systems

  • Regular audits of employee addresses across HR, payroll, and immigration systems
  • Quarterly compliance reviews to identify discrepancies
  • Technology solutions to flag address changes automatically

Coordinate Across Departments

  • Ensure HR, payroll, immigration, and legal teams communicate regularly
  • Designate a point person responsible for address change compliance
  • Create checklists and workflows for processing address changes

Proactive LCA Management

  • File LCAs for anticipated remote work locations before employees relocate
  • Consider broader geographic coverage in initial LCA filings where appropriate
  • Maintain updated prevailing wage determinations for common relocation areas

Employee Education

  • Train employees on their reporting obligations
  • Explain the serious consequences of unreported moves
  • Provide clear instructions on how to report address changes

Immediate Actions

Employers should consider taking the following steps to help address potential compliance gaps:

  1. Conduct an Audit: Review current employee addresses across all systems to identify discrepancies
  2. Implement Reporting Procedures: Establish clear processes for employees to report address changes
  3. Update Policies: Revise employment agreements and handbooks to include specific address change obligations
  4. Train Teams: Educate HR, payroll, and management on immigration compliance requirements for remote work
  5. Engage Immigration Counsel: Work with experienced immigration attorneys to assess current compliance and develop remediation strategies where necessary

Conclusion

The intersection of remote work flexibility and immigration compliance creates challenges for U.S. employers. While remote work offers benefits, it also comes with legal obligations. Employers who proactively address these compliance requirements may avoid costly penalties while maintaining the flexibility that makes them competitive in today’s talent market.

A strategy for maintaining compliance is treating address changes as immigration events requiring immediate attention, not merely administrative updates. By implementing robust monitoring and reporting systems, employers may be able to harness the benefits of remote work while complying with their immigration and labor law obligations.

This article provides general guidance on immigration compliance matters. Employers should consult with experienced immigration counsel to address specific situations and ensure compliance with current regulations.

On Oct. 23, 2023, the Department of Homeland Security (DHS) announced the Notice of Proposed Rulemaking (NPRM) to amend H-1B regulations. The purpose of the NPRM is threefold: 1) to modernize and improve the efficiency of the H-1B program; 2) to provide greater benefits and flexibilities; and 3) to improve integrity measures. This proposed regulation is open for public comment until Dec. 22, 2023. Comments can be submitted through the Federal eRulemaking Portal, referencing DHS Docket No. USCIS-2023-0005. 

The proposed rule will not take effect until the comment period ends and DHS publishes a final regulation. It is not clear if new provisions will be implemented in time for the upcoming cap registration season in March 2024.

This blog post summarizes the proposal’s key points.

  1. Modernization and Efficiencies

DHS intends to streamline requirements for the H-1B program with the following proposals:

Revisions to the definition of ‘Specialty Occupation.’ U.S. Citizenship and Immigration Services (USCIS) seeks to revise the regulatory definition and standards for a “specialty occupation” by clarifying the following:

  • There must be a direct relationship between the required degree field and the duties of the position.
  • A position will not qualify as an H-1B Specialty Occupation if it solely requires a general degree without further specialization (i.e., business administration, an unspecified quantitative field, or an engineering degree in any field of engineering).
  • Multiple degree fields required will not automatically disqualify the petition, but the petitioner has the burden of proof to explain how those disparate fields of study relate to the job duties.

Amend the Criteria for Specialty Occupation Positions. USCIS seeks to revise the criteria for specialty occupations by clarifying the following in the NPRM:

  • Currently, the regulatory criteria states that a bachelor’s degree is “normally” required for the position. The proposed rulemaking seeks to clarify that “normally” does not mean “always.”
  • Historically the regulations utilized a four-prong analysis to determine whether a position qualified as a specialty occupation. The proposed rule seeks to change this to a three-prong analysis by consolidating the second prong into the fourth.
  • When a beneficiary is staffed at a third party, DHS seeks to add the phrase “or third party if the beneficiary will be staff to that third party.” This change would allow the petitioner to use the third party’s typical requirements to prove specialty occupation.

Amended Petitions. Currently, an H-1B amendment is required when there is a material change in the terms of the H-1B employment, including a change in job duties, change in the worksite location outside the geographic area of employment, change in hours, or other changes that impact the conditions outlined in the underlying approved H-1B petition. The proposed rule seeks to clarify when an amended petition must be filed if there is a change in the worksite location. It also seeks to clarify when an amended or new petition is required for short-term placement of H-1B workers. The NPRM proposes the following: 

  • Any change in worksite location that reflects a material change requires a new petition.
  • A new or amended petition must be filed before the change takes place.
  • An amended or new petition is not required when the beneficiary is going to a non-worksite location to participate in employee development.

Deference. The proposed rule seeks to codify existing deference policy where adjudicators generally should defer to a prior determination involving the same parties and underlying facts if there is no material change. Codifying the deference policy is designed to better ensure consistent adjudications.

Maintenance of Status. According to the proposed rule, evidence of maintenance of status must be included with the initial filing of petitions that request to extend or amend the beneficiary’s stay. The NPRM also clarifies:

  • Petitioners should provide evidence with the initial filing, rather than waiting for a request for evidence.
  • The changes would impact the following employment-based classifications: E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1, and TN nonimmigrants.
  • Such evidence may include paystubs, W-2 forms, quarterly wage reports, tax returns, contracts, and work orders.

Eliminating the Itinerary Requirement for H Programs. The proposed regulation seeks to eliminate the itinerary requirement for H-1B and H-2 petitions, as the information provided in an itinerary is largely duplicative of information already provided in the Labor Condition Application (LCA).

Validity Expires Before Adjudication. DHS proposes to allow H-1B petitions to be approved or have their requested validity period dates extended if USCIS adjudicates and deems the petition approvable after the initially requested validity period end-date, or the period for which eligibility has been established, has passed. This generally would occur if USCIS deemed the petition approvable upon a favorable motion to reopen, motion to reconsider, or appeal.

  1. Benefits and Flexibilities

DHS proposes to modernize the definition of employers who are exempt from the annual statutory limit on H-1B visas and provide further benefits and flexibilities in the regulations. The proposed regulation allows additional flexibility for both beneficiaries and nonprofit and government research organizations.

H-1B Cap Exemptions. The NPRM proposes the following:

  • Replace “primarily engaged” and “primary mission” with “fundamental activity.” Such change would allow flexibility for beneficiaries whose work contributes (but does not predominately further) the qualifying organization’s purpose.
  • Clarify that a qualifying employer can have more than one “fundamental activity.”
  • Change the phrase “the majority of” to “at least half” to permit beneficiaries flexibility to qualify for cap-exempt status if they spend 50% of their time performing job duties at a qualifying research organization and 50% at a cap-exempt employer.
  • Clarify that performing at least 50% of the duties at a qualifying cap-exempt employer does not mean those duties need to be performed physically onsite.
  • Eliminate the requirement that the petitioner must show a direct correlation between the beneficiary’s duties and the essential purpose, mission, objectives, or functions of the qualifying organization.
  • Amend the definition of “nonprofit or tax exempt organizations” and eliminate the requirement to provide an IRS letter demonstrating the petitioner has been approved as a tax exempt organization “for research or educational purposes.” The petition still needs to provide documentation that it meets this requirement, but it does not need to be in the form of an IRS letter.

Automatic Extension of Authorized Employment. DHS proposes to provide flexibilities and address “cap-gap” issues by extending F-1 status and related work authorization until April of the relevant fiscal year. Currently, cap-gap is provided only until Oct. 1 of the relevant fiscal year.

Start Date Flexibility for Certain H-1B Cap-Subject Petitions. DHS also proposes greater flexibility on the requested H-1B employment start date listed on the Form I-129 petition to permit start dates that are after Oct. 1. Specifically:

  • The H-1B petition must be a nonfrivolous filing.
  • The requested start date cannot be more than six months beyond the filing date of the petition.
  • If the H-1B petition with the underlying cap-gap extension is denied before April 1, the cap-gap would end, and the F-1 student would have 60 days to depart the United States or take other action to maintain their status in the country.
  1. Integrity

DHS proposes to address H-1B Cap registration “abuse” by changing the way USCIS selects registrations. Several anti-fraud safeguards would be made to the current registration system to bolster the selection process and reduce the possibility of misuse and “gaming” of the system.

H-1B Registration System. Each beneficiary would have the same chance of being selected, regardless of how many registrations are submitted on their behalf. 

  • DHS proposes to select registrations by unique beneficiary rather than by registrations. Each unique individual would be entered into the selection process once, regardless of how many registrations were submitted on their behalf.
  • Related entities would not be allowed to submit multiple registrations for the same beneficiary.
  • The NPRM seeks to codify USCIS’s authority to deny an H-1B petition, or revoke an approved H-1B petition, if the underlying registration contains a false attestation or is otherwise invalid.

Beneficiary-Centric Selection. Beneficiaries would be allowed to have more than one registration submitted on their behalf, but each beneficiary would be entered in the selection process only once. Thus, if a random selection were necessary, selection would be based on each unique beneficiary, rather than each registration.

  • Previously, registrants have been able to bypass the passport requirement by indicating that they do not have a passport. The proposed regulation would require registrants to have a valid passport at the time of registration.
  • These changes may provide beneficiaries with greater autonomy with respect to their H-1B employment.

Bar on Multiple Registrations Submitted by Related Entities. Currently, DHS does not allow related entities to file multiple petitions for the same beneficiary. The proposed change would also bar related entities from submitting multiple registrations.

Registrations with False Information or that Are Otherwise Invalid. Currently, the regulations state if the petition contains material that is not true and correct, inaccurate, fraudulent, or misrepresents a material fact, the petition is subject to grounds for denial or revocation. DHS seeks to codify those requirements and extend the same requirements to the information provided in the registration. Furthermore, if a petitioner submits more than one registration per beneficiary in the same fiscal year, the proposed regulations will consider all of the registrations to be invalid.

Alternatives Considered. DHS plans to continue using the registration system and will not revert to the old paper-based filing system. Efforts will be made to continue to enhance the registration system, and DHS welcomes public comment on this issue.

Provisions to Ensure Bona Fide Job Offer for a Specialty Occupation Position. The proposed rule would codify USCIS’s authority to request contracts, work orders, or similar evidence to establish the contractual relationship between all parties as well as state the minimum educational requirements to perform the job duties. The rule also seeks to codify the requirement that the petitioner establish that non-speculative employment exists at the time of filing the petition. The NPRM would:

  • Provide USCIS authority to ensure the LCA properly supports and corresponds with the petition.
  • Alter the definition of “United States Employer” and remove the reference to Employer-Employee relationship from the definition.
  • Codify the existing requirement that the petitioner has a bona fide job offer for the beneficiary to work within the United States and add clarification that the bona fide job offer may include “telework, remote work, or other off-site work in the United States.”
  • Add a new requirement that the petitioner has a legal presence in the United States.

Beneficiary-Owners. DHS proposes to clarify that beneficiary-owners may be eligible for H-1B status even when the beneficiary possesses a controlling interest in that petitioner.

  • Conditions would apply when the beneficiary owns more than 50% or has more than 50% of the voting rights of the petitioner. Conditions would not apply if the beneficiary does not own a controlling interest.
  • The beneficiary must perform specialty occupation duties more than 50% of the time and can also perform non-specialty occupation duties that involve owning and operating the business.
  • Validity period of such petitions would be limited to 18 months. Subsequent extensions would not be limited and could be approved for up to three years.

Site Visits. DHS proposes to codify its existing authority to conduct site visits to maintain the integrity of the H-1B system. The NPRM would:

  • Establish consequences for failure to comply with site visits, including denial or revocation of the petition.
  • Clarify that public inspections would include onsite visits, interviews with officials, review of records related to compliance or any records USCIS deems pertinent to the facts related to the petition, as well as interviews with any individual.
  • Clarify that inspections may occur at the petitioner’s headquarters, satellite locations, or any location where the beneficiary will work, including the beneficiary’s home or third-party worksites.

Third Party Placement. DHS proposes to clarify that if an H-1B worker will be placed at a third party’s organization, USCIS will consider the requirements of that third party, and not the petitioner, to determine whether the position is a specialty occupation.

In almost every state, companies have instituted temporary work from home policies—or have been instructed by government authorities to institute such policies—in response to the coronavirus (COVID-19), in an effort to “flatten the curve” and stop the spread of the virus.  In so doing, companies that regularly employ H-1B and E-3 visa holders may need to review and revise compliance strategies to help avoid possible fines and penalties. An H-1B or E-3 visa holder is permitted to work at an identified worksite that is listed on a labor condition application that is certified by the U.S. Department of Labor (DOL) and included in an H-1B or E-3 petition that is filed with U.S. immigration authorities. Working at the identified worksite location is part of the terms and conditions of employment for the H-1B or E-3 visa holder, and changes to this worksite location, even for reasons outside of the employing company’s control, may still lead to penalties for non-compliance.

  1. The new, unintended worksite location is in the same area of intended employment as the normal worksite location. In response to COVID-19, the DOL released a “frequently asked questions” on March 20, 2020, that sought to address certain compliance issues concerning H-1B and E-3 visa holders. Specifically, in this FAQ, the DOL confirmed that if an H-1B or E-3 visa holder and employee moves to a new, unintended worksite location (including the employee’s home address) that is within the same area of intended worksite location, then the company and employer are not required to file a new labor condition application with the DOL that lists the new, unintended worksite location. Instead of filing a new labor condition application with the DOL, the company and employer must provide an electronic or hard-copy posting notice at the new worksite location for 10-calendar days. Normally, the notice must be provided before the H-1B or E-3 visa holder begins working at the new worksite location, but because many companies sent their employees home suddenly and without notice because of COVID-19, the DOL said that the new notice may be provided “as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations.”
  2. The new, unintended worksite location is not within the same area of intended employment as the normal worksite location. In situations where the new, unintended worksite location is not within the same area of intended worksite location, often meaning that the H-1B or E-3 visa holder is now working in a different county than his or her regular worksite location, then the company may take advantage of the short-term placement rule for up to 30 days, or possibly 60 days provided other conditions are met. According to the DOL’s FAQ, if the H-1B or E-3 visa holder will work at the new worksite location for more than 30 or 60 days, then the company must file a new labor condition application and a H-1B or E-3 amendment petition with USCIS before the 30 or 60-day period has elapsed. A company and employer’s failure to file the H-1B or E-3 amendment within the 30 or 60-day period may result in DOL investigations and/or penalties for failing to comply with the governing regulations.

Penalties may include civil penalties of up to $7,846 per violation, the award of back wages plus interest being paid to the H-1B or E-3 visa holder, and possibly debarment by the DOL from using the H-1B program for a temporary period or time or permanently.