by Carter Law
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by Carter Law
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On September 19, 2025, President Trump signed an executive order imposing a $100,000 surcharge on each H-1B petition submitted for a foreign worker entering the U.S. from abroad. On its face, this order appeared to become effective at midnight on September 21, 2025, and would apply to all new H-1B filings unless exempted under a narrow “national interest” clause. However, subsequent “fact sheets” and policy memoranda from the relevant agencies appear to limit the scope of the proclamation, while also leaving many questions still unanswered.
Key Provisions
- $100,000 Fee: Applies to each future petition for an H-1B worker who will enter the U.S. from abroad.
- National Interest Exemption: Limited to cases involving critical infrastructure, defense, or public health.
- Prevailing Wage Reform: Employers must meet elevated wage thresholds, prioritizing high-skilled, high-paid roles.
- Entry Restrictions: Future H-1B workers cannot enter the U.S. unless the fee is paid and the petition meets new criteria.
H-1B Petitions Impacted
| H-1B Category | Impacted | Added Cost |
|---|---|---|
| New H-1B Filing for Individuals outside the U.S. requesting Consular Notification | Yes | $100,000 |
| H-1B Transfers for Individuals currently inside the U.S. | No | No |
| Change of Nonimmigrant Status to H-1B for Individuals currently inside the U.S. (includes F-1 to H-1B, H4 to H-1B) | No | No |
| H-1B Amendments for those in the U.S. | No | No |
| H-1B Extensions of Status (including those under AC21) | No | No |
| H-1B workers with valid visas, temporarily outside the U.S., not requiring a new petition or new visa | No | No |
Implications on Travel for H-1B Workers
In the immediate aftermath of the proclamation, employers and law firms like ours urged H-1B employees against travelling outside of the United States due to fears that they would not be permitted to return without a $100,000 payment. However, intervening policy memoranda and fact sheets now confirm that travel is permissible for current H-1B employees with valid visas, as the $100,000 fee will not apply to those individuals.
Implications for Employers
- Cost Burden: Employers must reassess budgets for foreign talent acquisition.
- Reduced Access: Smaller firms and startups may be priced out of H-1B sponsorship.
- Compliance Risk: Noncompliance may result in petition denials or enforcement actions.
- Strategic Planning Needed: Employers should evaluate remote work options, green card pathways, and alternative visa categories such as B-1, F-1, L-1, O-1.
Likelihood Executive Action Will Withstand Judicial Challenge
The likelihood that this Executive Action will withstand judicial scrutiny is uncertain, but it faces significant legal challenges, especially on constitutional and statutory grounds. Here’s a breakdown of the key legal vulnerabilities:
- Violation of the Immigration and Nationality Act (INA)
- The INA delegates authority to set visa fees to Congress and the Departments of State and Homeland Security—not the President directly.
- Courts may find that a flat $100,000 fee exceeds the scope of executive authority under existing law.
- Equal Protection and Due Process Concerns
- A blanket fee that disproportionately affects foreign workers and smaller employers could be challenged as discriminatory or arbitrary.
- Plaintiffs may argue that the fee lacks a rational basis and unfairly targets certain industries or nationalities.
- Administrative Procedure Act (APA)
- The order directs agencies to implement sweeping changes without formal rulemaking.
- If agencies enforce the fee without notice-and-comment procedures, courts may block implementation under the APA.
- Commerce Clause and Economic Harm
- Tech companies and universities may argue that the fee disrupts interstate commerce and harms U.S. competitiveness.
- Early reports suggest that major employers are preparing litigation on these grounds.
What to Watch For
- Federal court filings in California, New York, and D.C. are expected imminently.
- Temporary injunctions could delay implementation while courts assess legality.
- Agency guidance from DHS and DOL will clarify enforcement mechanisms and may affect judicial review.
Even if the Courts Strike the Executive Order Down as Overreach
Anticipate the Administration to vigorously pursue rule changes through the Administrative Procedures Act (APA) making targeted changes to those rules which they have authority over.
- DHS/USCIS to change the criteria for the H-1B vias lottery giving priority to higher wage applicants (along the lines of what they attempted in 2019/2020).
- DOL to increase minimum wage requirements for both H-1Bs and PERM (along the line of what they attempted in 2019/2020 but were enjoined from doing due to their failure to follow the APA).
- DOL’s “Project Firewall” will ramp up investigations and audits of H-1B employers to confirm compliance and identify violations.
Carter Law Group’s Role
We are actively monitoring regulatory developments and will provide:
- Individualized impact assessments for your workforce
- Strategic alternatives to H-1B sponsorship
- Support for exemption filings and wage compliance
- Ongoing updates as DHS and DOL release implementation guidance
Contact Us: For urgent matters or to schedule a strategic review, please contact us.
