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.