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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.

The U.S. Department of Homeland Security (DHS) published its final rule prioritizing the allocation of H-1B visas to higher-skilled and higher-paid workers in the Federal Register on Dec. 29, 2025.

The new rule replaces the random lottery for selecting visa recipients with a process that gives greater weight to those in higher-paid roles with higher education and experience requirements. 

This rule follows a notice of proposed rulemaking (NPRM) issued on this topic on Sept. 24, 2025, called Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions, 90 FR 45986 (Sept. 24, 2025). Please see our prior GT Blog for further details on the NPRM.

The final rule replaces the current random H‑1B lottery with a weighted system that assigns multiple entries to each registrant based on the proffered wage level, as determined by the Department of Labor (DOL)’s Occupational Employment and Wage Statistics (OEWS) structure. According to the posted final rule, high wage offers may get more entries, increasing chances of selection.

  • Wage Level IV (roles requiring advanced education/experience, often leadership or highly specialized roles) → 4 entries
  • Wage Level III (roles requiring advanced education/experience handling complex tasks; may supervise others) → 3 entries
  • Wage Level II (roles requiring some experience involving moderately complex tasks with limited supervision) → 2 entries
  • Wage Level I (entry-level roles requiring basic understanding and performing routine tasks under close supervision) → 1 entry

As such, higher-paid foreign workers who are being offered senior roles requiring higher education levels and/or more work experience would have higher chances of selection. Candidates for entry-level roles will still have the opportunity to participate; however, they may face lower chances of selection.  

Now that DHS has finalized and published its rule, employers may wish to consider strategically positioning their H‑1B filings within this new weighted system by proactively addressing wage levels, wage source documentation, and regulatory compliance.

Based on the published final rule, employers should consider the following:

  1. Strategic Wage Positioning
    • More senior roles, paired with a higher wage, may see higher odds for approval: Consider senior roles with compensation that meets higher wage levels.
  1. Prevailing Wage Compliance
    • Offering higher wages alone is not sufficient: the offered wage level must be assigned based on:
      • The proper DOL classification of the offered role; and
      • The actual education and work experience requirements for the offered role.
    • Maintain documentation to support wage assignments and withstand DOL/U.S. Citizenship and Immigration Services review.
  1. Recruitment & Budget Planning
    • Adjust budgets to accommodate wage increases for higher-weighted entries.
    • Incorporate these changes into annual workforce strategies and financial forecasts.
  1. Informed Submission Timing
    • Plan wage and position decisions well before the registration period, as wage info must be included in initial registration, not later during filing.

This Times of India article discusses new USCIS requests for evidence (RFEs) under the Trump administration that demand a $100,000 H-1B visa fee, creating confusion and concern among employers and visa applicants, especially Indians. Greenberg Traurig Immigration & Compliance Co-Chair Kate Kalmykov notes that the heightened costs and uncertainty may cause companies to reconsider or delay H-1B sponsorships. This development is significant as it may add financial and procedural hurdles to a visa program widely used by skilled foreign professionals.

Read “USCIS Issues Requests for Evidence Demanding $100,000 H-1B Fee; Here’s What it Means for Indians.”

This CNBC TV 18 article discusses the U.S. Department of Labor’s Project Firewall, launched in September 2025 to intensify enforcement against misuse of the H-1B visa program and prioritize American workers. The initiative allows the government to investigate employers proactively and is accompanied by a public campaign emphasizing job protection. Greenberg Traurig Immigration Co-Chair Kate Kalmykov noted that the program marks one of the most aggressive H-1B enforcement efforts in years, signaling that compliance is mandatory and investigations may become deeper and faster.

Read “‘Put Our Workers First’: US Tightens H-1B Visa Scrutiny to Protect ‘American Jobs.'”

In a new procedural development, U.S. consular posts have started forwarding B-1 in lieu of H-1B visa applications to the Department of State (DOS)’s Visa Office in Washington, D.C., for final review and approval before issuance. This additional review step represents a more centralized approach to evaluating such applications and reflects growing attention to how this limited visa category is being used.

Background: Narrow Use and Increased Oversight

The B-1 in lieu of H-1B classification has traditionally allowed certain foreign professionals to perform short-term, professional assignments in the United States while remaining on the payroll of a foreign employer. The classification requires that the worker remain employed and paid abroad, that the salary or remuneration continue to come from a foreign source, and that the individual not enter the U.S. labor market through local employment or direct hire. The underlying principle is that work performed in the United States under this classification must have no impact on the U.S. labor market and must be incidental to the person’s ongoing foreign employment.

Following implementation of the $100,000 “Visa Integrity” fee for new H-1B petitions filed on or after Sept. 21, 2025, U.S. authorities are concerned that some employers may attempt to use the B-1 in lieu of H-1B route to avoid paying the new fee for individuals outside the United States. The concern is that beneficiaries might enter under this classification, then later file an H-1B change of status petition from within the United States, effectively bypassing both the fee and the intended H-1B screening process.

The New Review Process

To address these concerns, DOS is now having consular posts refer B-1 in lieu of H-1B visa applications to the Visa Office in Washington, DC for final review. Consular officers will have to wait for the Visa Office to approve an application before issuing the visa stamp. The Visa Office will assess whether an application meets the narrow legal standards for the category and whether it appears to be an attempt to avoid H-1B program requirements or the new statutory fee.

As a result, applicants applying under this classification may anticipate longer processing times and closer scrutiny. Employers planning to send professionals to the United States for short-term work might evaluate whether the proposed activities fall within permissible B-1 business parameters or whether an H-1B petition (with full fee payment) is the appropriate route.

Implications for Employers

This change underscores the government’s focus on fee compliance and the proper use of visa classifications. Employers should consider taking the following steps:

  1. Reevaluate any planned use of the B-1 in lieu of H-1B category for overseas professionals.
  2. Ensure that documentation clearly demonstrates the continued foreign employer-employee relationship and that compensation is paid abroad.
  3. Avoid structuring travel or assignments that might resemble H-1B employment.
  4. Anticipate possible delays in visa issuance due to the new review process.

While the B-1 in lieu of H-1B option remains available, it is now subject to a more rigorous level of oversight. Use of this already challenging classification should be used in very limited circumstances, and employers may wish to assess alternative immigration options where possible.

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.

In this timely episode of Immigration Insights, hosts Kate Kalmykov and Courtney Noce, co-chairs of Greenberg Traurig’s Global Immigration & Compliance Group, address major developments in the U.S. immigration landscape. 

They discuss the administration’s surprise $100,000 fee on new H-1B petitions, initial confusion over its application, and the ongoing quest for clarity on exemptions and compliance. 

Kate and Courtney also delve into the proposed overhaul of the H-1B lottery to a points-based system, the rollout of Project Firewall, and the implications for wage compliance. 

Lastly, the episode highlights the newly introduced Gold Card and Platinum Card concepts, comparing them to EB-5 and examining what they mean for individual investors and U.S. business sponsors. 

Tune in for information on what these changes may mean for the future of U.S. immigration, global talent acquisition, and foreign investment.

Click here to listen to the full episode.

In Law360, Ian R. Macdonald, Greenberg Traurig shareholder in the Immigration & Compliance practice group, discusses a proposed DHS rule that would change the H-1B visa lottery from a random selection to a wage-weighted system, giving higher selection chances to beneficiaries offered higher wages based on DOL wage levels. The proposal aims to align visa allocation with skill level and program integrity.

Macdonald outlines potential impacts on employers, including increased labor and compliance costs, challenges for entry-level hiring, and the need to adjust workforce and compensation strategies.

Read “How DHS’ H-1B Proposal May Affect Hiring, Strategic Planning,” authored by Ian R. MacDonald, on the Law360 website. (subscription)

This Bloomberg Law article examines how proposed changes to the H-1B visa program are prompting companies to update their compliance practices. The new rules aim to increase transparency and oversight, requiring employers to adopt stricter documentation and reporting procedures. Kate Kalmykov, co-chair of Greenberg Traurig’s Immigration & Compliance practice, noted that these changes are encouraging companies to be more proactive and thorough in their compliance efforts. Experts also observe that organizations are reviewing and improving their internal processes to meet the evolving requirements for hiring foreign workers under the H-1B program.

Read “H-1B Visa Overhaul Spurs New Corporate Compliance Tactics.” (subscription)