Making sense of the “H-1b Proclamation”

On September 19, 2025, President Donald Trump issued a proclamation titled “Restriction on Entry of Certain Non-Immigrant Workers“, where he targeted H-1b workers.

This article will attempt to analyze and summarize each of the sections of the proclamation, as far as possible. This is by no means the final word on this proclamation; however, it may be an instructive and illustrative guide to begin research and analyze any future clarifications which might come out of the White House or federal agencies.

First of all, a proclamation is not an executive order. An executive order directs and governs actions by government officials and agencies. It has the force of law. It must be published in the Federal Register and in the Code of Federal Regulations.

Proclamations, on the other hand, deal with the activities of private individuals, and do not have the force and authority of law unless the president is given the authority over such private individuals by the constitution or a federal statute.

See the Library of Congress’ explanation of the differences between an EO, a Proclamation, and an Executive Memorandum, at https://guides.loc.gov/executive-orders/order-proclamation-memorandum

Hence, it is doubtful that the executive proclamation of September 19 has the full force of law as would an executive order.

However, the actual effect of such proclamation will be that government agencies will put some, or all of the proclamation into effect absent any judicial Injunction.

What exactly is the proclamation, and what does it say?

The proclamation begins with an explanation of the reasoning for the proclamation: briefly, the White House claims that companies have abused the H1B visa program by bringing skilled immigrants into the United States to perform work, often at wages lower than those paid to US workers. The proclamation also goes on to provide examples (without citation) of various companies, which have laid off US workers in order to hire H1B workers. In addition, the proclamation cites statistics – again, without any attribution – of alleged US unemployment while foreign workers fill US jobs.

Citing these unattributed grounds, the proclamation then goes to lay out a remedy for curing these alleged effects in the H1B program.

An analysis of each section of the Proclamation, and it’s potential effects, unknowns, and uncertainties follows.

Let’s keep in mind that the President orders certain actions to be taken by this proclamation. It is important to remember that the president has no authority over individuals and less specifically provided by law. Yet, in this proclamation, Trump orders agencies to implement restrictions – absent any legal authority to do so – on H1B workers. A proclamation is not the correct vehicle to do this. This should have been initiated by executive order, which Trump can issue in order to direct executive-branch agencies to conduct operations a certain way.

Section 1. Restriction on Entry. (a) Pursuant to sections 212(f) and 215(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(f) and 1185(a), the entry into the United States of aliens as nonimmigrants to perform services in a specialty occupation under section 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C. 1101(a)(15)(H)(i)(b), is restricted, except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000 — subject to the exceptions set forth in subsection (c) of this section. This restriction shall expire, absent extension, 12 months after the effective date of this proclamation, which shall be 12:01 a.m. eastern daylight time on September 21, 2025.

Explanation: (a) the president orders H1B aliens’ Entry to the United States shall be restricted unless their H-1b petitions were accompanied by or supplemented by a payment of $ 100,000. The proclamation is effective on September 19, 2025, and this restriction goes into effect on September 21, 2025 parentheses Sunday) at 12:01 AM Eastern daylight time. So presumably the fee would Not have to be paid by any employer who filed the petition BEFORE the effective date.

However, there is additional complication: WHO exactly is subject to this Proclamation? H-1b’s who were in the USA when their H-1b status was approved and subsequently return to their countries for a visa issuance? H-1b’s who were NOT subject to the H-1b cap and therefore NOT included in the lottery? H-1b’s who changed jobs from an existing H-1b employer-petitioner to another? H-1b’s who are employed by non-profit or cap-exempt entities?

(b) The Secretary of Homeland Security shall restrict decisions on petitions not accompanied by a $100,000 payment for H-1B specialty occupation workers under section 101(a)(15)(H)(i)(b) of the INA, who are currently outside the United States, for 12 months following the effective date of this proclamation as set forth in subsection (a) of this section. The Secretary of State shall also issue guidance, as necessary and to the extent permitted by law, to prevent misuse of B visas by alien beneficiaries of approved H-1B petitions that have an employment start date beginning prior to October 1, 2026.

This proclamation is going to be in effect for 12 months after September 21, 2025, ie, September 21, 2026 at 12:01 Am Eastern Time. Once again, the Proclamation clearly states that the $ 100,000 fee applies to visa applicants who are OUTSIDE the United States. So for those who are inside the USA and do not leave, the $ 100,000 fee or supplemental fee should presumably NOT apply.

The second clause of clause 1(b) is a little more troubling:

“The Secretary of State shall also issue guidance, as necessary and to the extent permitted by law, to prevent misuse of B visas by alien beneficiaries of approved H-1B petitions that have an employment start date beginning prior to October 1, 2026.”

This is a confusing conflation of two issues: misuse of B visas, by beneficiaries of approved H1B petitions, with previously approved H-1b petitions. It is not clear what misuse is alleged; it is also not clear why someone on an approved H-1b petition with an employment start date prior to October 1, 2026 would have to resort to using a B visa. Typically, B visas are issued and used by aliens seeking to enter the United States either for business (B – 1) or pleasure (B –2).. Finally, we have already seen that any restriction issued by this administration is typically heavy handed, overbroad, and seeks to fix a problem which often doesn’t exist. This entire Proclamation is a case-in-point.

(c) The restriction imposed pursuant to subsections (a) and (b) of this section shall not apply to any individual alien, all aliens working for a company, or all aliens working in an industry, if the Secretary of Homeland Security determines, in the Secretary’s discretion, that the hiring of such aliens to be employed as H-1B specialty occupation workers is in the national interest and does not pose a threat to the security or welfare of the United States.

Exemption from the $ 100,000 fee is possible. However, the criteria for such an exemption are unknown, how the exemption would be applied is unknown, and the process of applying for such an exemption is also unknown. So, lots of unknowns at this point on the $ 100,000 fee exemption.

Sec. 2. Compliance. (a) Employers shall, prior to filing an H-1B petition on behalf of an alien outside the United States, obtain and retain documentation showing that the payment described in section 1 of this proclamation has been made.

This section is very confusing. Where does the employer pay this fee? To whom? This is only for employees who are outside the United States, so therefore, employees who are applying to change status within the United States, should not be subject to this requirement.

(b) The Secretary of State shall verify receipt of payment of the amount described in section 1 of this proclamation during the H-1B visa petition process and shall approve only those visa petitions for which the filing employer has made the payment described in section 1 of this proclamation.

The Secretary of State needs to verify receipt of payment. Does this mean that payment must be made by the employer to the USCIS, which is the contact agency for granting H1B classifications, or the Department of State, which is the agency for actually issuing H-1b visas to prospective H1B workers who are overseas? Again, unclear. What is clear, again, is that the fee DOES NOT apply to H-1b workers who apply for Change of Status to H-1b while WITHIN the USA. The fee is triggered only in the case of H-1b’s who are OUTSIDE the USA.

Another factor which is unclear is whether the fee is triggered even if the H-1b worker leaves the USA to get his or her visa issued at a US consulate overseas. That is, suppose the worker was an F-1 student in the USA, secured a slot in the visa lottery, and then leaves the USA? Is the fee triggered for such an employee too? The first sentence of the Proclamation, Section 1(a) clearly states: “The Secretary of Homeland Security shall restrict decisions… for H-1B specialty occupation workers… who are currently outside the United States…” This would seem to exempt such employee.

Under (c), the DOS and DHS will coordinate to take any action and deny entry for any H1B for whom the prospective employer has not made the payment of $100,000. So clearly, the employer who is obligated to pay the $ 100,000 fee is a prospective employer, that means that the employer is filing a new H-1b classification petition for the employee, and that the employer is responsible for the payment.

Sec. 3. Scope and Implementation of Restriction on Entry. (a) The restriction on entry pursuant to section 1 of this proclamation shall apply only to aliens who enter or attempt to enter the United States after the effective date of this proclamation as set forth in section 1(a) of this proclamation.

This proclamation applies only to aliens who enter the United States after the effective date of the proclamation, which is September 21, 2025. This apparently set off a mad dash to return to the USA BEFORE the effective date and time of the Proclamation, September 21, 2025 at 12:01 AM Eastern Time. What of those employees who could no secure a flight back before the Proclamation’s effective date and time?

Once again, this Administration’s propensity to make innocent individuals squirm and suffer, make the entire system fall into chaos cannot be understood or underestimated. It seems as though the Administration rejoices in inflicting needless cruelty on both citizens and non-citizens, on tax paying companies and tax-paying employees.

[I know of a case where an H-1b rushed to return to the USA and had to abandon an engagement to their prospective spouse – I am sure there are other such tragic occurrences]

However, what is not clear is which aliens this will affect. Under 1(b), ‘the alien, whose petition is not accompanied by the $100,000 payment’ conflicts with 2(a), compliance, which specifically requires a prospective employer to prove that payment has been made prior to filing the H1B petition on behalf of an alien outside the United States. So if the petition was filed and approved BEFORE the employee left the USA the $100,000 requirement should not be triggered. Or would it? What’s an employer (and the hapless H-1b employee) supposed to do given the poorly drafted Proclamation?

(b) No later than 30 days following the completion of the H-1B lottery that immediately follows this proclamation, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall jointly submit to the President, through the Assistant to the President and Homeland Security Advisor, a recommendation on whether an extension or renewal of the restriction on entry pursuant to section 1 of this proclamation is in the interests of the United States.

Under section 3(b), The H1B lottery that would end approximately March 25-28 of 2026 will trigger a 30 day window, during which the US Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security will submit a joint recommendation on whether an extension or renewal of this proclamation is in the interest of the United States or not.

Sec. 4. Amending the Prevailing Wage Levels. (a) The Secretary of Labor shall initiate a rulemaking to revise the prevailing wage levels to levels consistent with the policy goals of this proclamation consistent with section 212(n) of the INA, 8 U.S.C. 1182(n).

The Secretary of Labor is directed to initiate a rule-making consistent with the policy goals of this proclamation. This is a potentially very harmful clause indeed, maybe even more harmful than clause 1(a), the $100,000 rule. Why is it so dangerous? Because it requires that the Secretary of Labor revise prevailing wage levels which are expressly and impliedly going to rise in order to effectuate Trump‘s wish that the H-1b should be reserved only for highly skilled and highly paid workers. This is borne out by subsection B, below.

(b) The Secretary of Homeland Security shall initiate a rulemaking to prioritize the admission as nonimmigrants of high-skilled and high-paid aliens, consistent with sections 101, 212, and 214 of the INA, 8 U.S.C. 1101, 1182, and 1184.

No mention is made of the affected Visa classifications for such aliens, but from this subsection, it seems very clear that the policy goal of this proclamation is to restricted admission of H-1b’s only to Highly skilled and Highly paid employees. Of course, this is in addition to the whopping $100,000 fee, already paid by the employer for such aliens who are already outside the United States. For instance, will following the wage levels now be required also for O-1 and L-1A and L-1B employees? How about E-1’s and E-2’s?

Sec. 5. General Provisions. This section sets for the standard provisions in all of the proclamations, and as a catchall for compliance with various laws.

(b) This proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.

However, applicable laws need to be in place in order to effectuate the terms of the proclamation. There is no applicable law relating to payment of the $100,000 additional surcharge for H1B. There is no applicable law related to the use or alleged use of B visas for foreign workers who have already been granted an H1B. There is no other applicable law, which would permit the Secretary of Labor to revise the methodology for issuing prevailing wage rates for occupations, as is effectuated today. Hence, there are significant barriers to implementation of this proclamation because of the lack of laws that would permit implementation of these new restrictions and requirements.

In other words, Trump is not an emperor. Simply because he “promulgates” some concept or idea does not make it law.

Conclusion.

As I noted above, this is by far, not the last word we will hear on this issue. However, my brief advice to all H-1b’s, including those who have received an H-1b in the past, but whose visa has expired, is to hold off on any travel outside the USA, including applications for visa issuance, until the full effects of this proclamation are revealed, and any litigation, injunction, or other legal processes are concluded, and the government‘s authority and boundaries are clearly established.

Else, it is quite possible that an alien H-1b worker traveling innocently back to his or her home country may find a significant obstacle in returning to the United States unless his or her employer pays the proclamation fee of $100,000.

Farhad Sethna has practiced law for over 30 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to farhad@sethnalaw.com. We will try to answer as many questions as possible.

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Making sense of the “H-1b Proclamation”