Summary of White House Announcements Impacting the H-1B Program: What We Know Now

The White House has announced significant changes to the H-1B program, including a new $100,000 petition fee, revised prevailing wage rules, a tiered lottery system, and expanded enforcement measures. These developments create new potential disruptions for employers filing or maintaining H-1B petitions.

NEW $100K H-1B FEE

The White House on September 19, 2025 issued a presidential proclamation affecting the H-1B program, requiring the payment of a $100,000 fee for the entry of H-1B workers into the United States. The proclamation is styled as an entry ban; it renders inadmissible to the United States any H-1B worker for whom the fee is not paid. Currently, there is no mechanism in place for payment of this fee to the US Department of Homeland Security or to the US Department of State.

While there is still a great deal of uncertainty regarding the ban, we are aware of several exceptions. Below is our current understanding of the applicability of the new fee.

Fee Appears to Cover New H-1B Petitions

• Effective 12:01 am ET on September 21, 2025, any new H-1B petition must be accompanied by a $100,000 payment
• Petitions filed before this date are not subject to the new fee
• The fee is a one-time requirement per application, not an annual payment
• The US Department of Homeland Security (DHS) has instructed the US Citizenship and Immigration Services (USCIS) to suspend adjudication of petitions filed after the effective date until the $100,000 fee is paid; however, there is currently no mechanism for making such a payment

Current H-1B Visa Holders and Travelers

• The proclamation does not apply to the following:
  • Existing H-1B visa holders
  • Routine renewals/extensions of H-1B status (H-1B workers transferring to a different employer in H-1B status)
  • H-1B1 visas (treaty-based visas for nationals of Chile and Singapore)
• Current holders of valid H-1B visas may continue to travel in and out of the United States without being subject to the new fee
• Similarly, the White House FAQ leaves some ambiguity about whether consular processing or visa stamping for H-1B workers who have changed employers inside the United States will be impacted at the time of international travel
• We hope to get clarification on the specific treatment of change-of-employer petitions; in the meantime, employers that file H-1B petitions without the new fee should prepare for unpredictability and potential inconsistencies at consulates and ports of entry until implementation practices stabilize

Cap-Exempt H-1B Employers

An area of continuing uncertainty is how the new fee will apply to cap-exempt employers, such as universities and not-for-profit research organizations. Current H-1B holders for such institutions are certainly exempted, as discussed above. However, as cap-exempt employers may file new H-1B petitions and change-of-status petitions from other visa classifications to H-1B at any time, without regard to the quota or lottery, it is not clear whether USCIS will consider these filings to be “new petitions” and require the payment of the $100,000 fee.

Several cap-exempt employers have filed petitions since the announcement and are waiting to learn whether USCIS will reject these filings or send a request for the payment of the fee.

Duration and Waivers

• The proclamation is effective for 12 months (through September 20, 2026), subject to extension
• DHS retains discretion to grant national interest waivers of the fee requirement, although standards have not yet been published

ANNOUNCEMENT OF DOL RULE CHANGING CALCULATION OF PREVAILING WAGE

The proclamation also announced that the US Department of Labor (DOL) would initiate a rulemaking to revise prevailing wages to align with the policy goals of the administration to restrict H-1Bs. Employers wishing to hire H-1B, E-3, and H-1B1 workers must pay the higher of the actual wage paid to similarly occupied US workers or the prevailing wage for the worker’s occupation in the geographic area of intended employment. Similarly, an employer pursuing a permanent labor certification (PERM) on behalf of a foreign worker must promise to pay at least the prevailing wage for the occupation in the area of intended employment, as determined by DOL.

In October 2020, DOL issued an interim final rule, with immediate effect, that would have substantially revised the agency’s prevailing wage structure. The rule would have increased entry-level wages for H-1B and PERM cases from the 17th percentile to the 45th percentile of wages for an occupation in a particular geographic location. The rule was challenged in court and enjoined.

In January 2021, DOL published a new final rule, supplanting the enjoined interim final rule, that sought to raise all four salary tiers over a period of a year and a half for the H-1B, E-3, H-1B1, and PERM programs, with the first increase set to occur on July 1, 2021. The final rule contained significant prevailing wage increases for all wage levels, though not as high as those initially sought by DOL in the now-enjoined interim rule. Three separate courts enjoined this rule, and it was ultimately rescinded in December 2021 and replaced by a rule that maintained the prevailing wage system and methodologies that are currently in place.

The announcement in the proclamation signals that DOL will soon reissue a rulemaking to significantly raise prevailing wages for these foreign worker programs and may return to some of the proposals that it attempted to finalize in 2020 and 2021.

RESTRUCTURING OF H-1B LOTTERY TO A TIERED SALARY-BASED SELECTION PROGRAM

Every year, there is a limit of 65,000 new H-1B slots and an additional 20,000 new slots for individuals who have completed a US master’s degree or higher, for a total of 85,000 H-1B numbers for employers that are not cap-exempt. As demand for new H-1Bs typically outstrips supply, the law instructs USCIS to implement a lottery to randomly allocate H-1B slots to applicants that are registered for the lottery.

DHS has now proposed a weighted lottery that would favor applicants who will be paid at higher wage levels. Specifically, registrations would be entered into the lottery as follows:

• Registrations for beneficiaries assigned Wage Level IV would be entered into the selection pool four times
• Registrations for beneficiaries assigned Wage Level III would be entered into the selection pool three times
• Registrations for beneficiaries assigned Wage Level II would be entered into the selection pool twice
• Registrations for beneficiaries assigned Wage Level I would be entered into the selection pool once

The proposal includes changes to the type of information collected during the H-1B lottery process to align with the weighted system. In addition, an employer that wishes to use an otherwise legally acceptable alternative wage source other than the DOL’s wage system will be required to register a lottery applicant as a Wage Level I employee.

Under the new system, the probability of selection for Wage Level I registrants is expected to decrease by approximately 48%. Conversely, those registered under Wage Level II are expected to have an increased chance of selection by 3%, 55% for Wage Level III entrants, and 107% for those registered at Wage Level IV. The change was proposed, according to the administration, to incentivize employers to offer higher wages and/or sponsor positions requiring higher skills and thus, higher wage levels. As a result, the proposed system is aimed at granting H-1B authorization to individuals who are “higher skilled” and paid higher wages while simultaneously maintaining the opportunity to secure H-1B selection at all wage levels.

Assuming the rulemaking is finalized as is, USCIS will implement this weighted system in the upcoming March 2026 lottery.

‘PROJECT FIREWALL’: DOL TO INCREASE INVESTIGATIONS OF H-1B EMPLOYERS

On September 19, 2025, the DOL announced Project Firewall, a new initiative aimed at strengthening enforcement of the H-1B program. According to DOL, the initiative will include:

• Secretary-certified investigations: For the first time, the secretary of labor will personally certify the initiation of investigations where there is “reasonable cause” to believe an H-1B employer is out of compliance Historically, investigations of H-1B abuse came about as the result of worker complaints.
• Expanded enforcement consequences: Employers found in violation may face back wage liability, civil money penalties, and/or debarment from future access to the H-1B program
• Interagency coordination: DOL will coordinate with the US Department of Justice Civil Rights Division, the Equal Employment Opportunity Commission (EEOC), and USCIS to share information and refer cases

As background, before filing an H-1B, H-1B1, or E-3, an employer must secure certification of a Labor Condition Application (LCA) from DOL. In the LCA, employers make binding attestations, including the following:

• H-1B workers will be paid the greater of the actual wage or prevailing wage
• The employment of H-1B workers will not adversely affect similarly employed US workers
• No strike or lockout exists in the occupational classification at the worksite
• US workers were given proper notice of the LCA filing

Employers must maintain a Public Access File (PAF) containing specified documentation, including the certified LCA, prevailing wage source, wage rate, benefits information, and evidence of posting.

Under regulation, the DOL’s Wage and Hour Division (WHD) has long had authority to investigate noncompliance or abuse of the rules relating to LCAs. Among the penalties that WHD may impose upon an employer found to be noncompliant are payment of back wages to H-1B workers, civil monetary penalties, and debarment from use of the H-1B program.

No new regulations or statutory obligations were announced. However, the initiative signals a more aggressive enforcement posture, increasing the likelihood of employer audits and site visits.

For more information on Project Firewall, please see our recent LawFlash:

• DOL Launches Project Firewall with Immigration, Wage & Hour, and Criminal Implications for Employers

NEXT STEPS

We recommend that employers take the following steps:

• Review upcoming H-1B hiring and transfer needs and be in contact with legal counsel for strategic analysis and planning
• Remind employees with international travel plans to carry documentation confirming current H-1B status and validity, a valid passport and H-1B visa, and a copy of the I-797 approval notice indicating the date of approval of the H-1B petition
• Review current practices regarding the preparation, filing, and maintenance of LCA documentation, and be in touch with counsel regarding advice on compliance with DOL and USCIS rules related to LCAs

Many questions regarding the implementation of the proclamation, including the contours of the future Fiscal Year 2027 H-1B lottery, remain unresolved. We will continue to monitor and inform on developments related to the proclamation and H-1B policy and procedure.

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