H-1B Update: USCIS Guidance, $100K Fee, and Proposed Lottery Changes
The H-1B program allows U.S. employers to hire foreign workers in specialty occupations to fill critical skills gaps. On Sept. 19, President Donald Trump issued a proclamation restricting the entry of certain H-1B workers, requiring a $100,000 fee for each new petition filed for foreign nationals outside the U.S., effective Sept. 21. The proclamation stated that the secretary of Homeland Security may grant limited national interest waivers for specific workers, companies, or industries.
U.S. Citizenship and Immigration Services (USCIS) issued updated guidance on Oct. 20 clarifying that the fee applies to new petitions filed on or after Sept. 21 for workers abroad without valid H-1B visas or petitions requesting consular or port-of-entry notification. Exemptions include current H-1B holders, petitions filed before Sept. 21, previously issued visas, amendments, extensions, or status changes for workers lawfully in the U.S., and approved petition holders re-entering on valid visas. The guidance also directed employers to a payment portal and emphasized that exception requests may be submitted for rare circumstances.
The proclamation drew legal criticism, with the U.S. Chamber of Commerce filing a complaint in U.S. District Court for the District of Columbia, arguing that the $100,000 fee exceeds statutory limits and undermines Congress’ intent.
Because H-1B demand regularly exceeds the annual cap, USCIS uses a lottery system to determine which petitions can be filed. USCIS proposed changing the lottery to a weighted system based on wage levels, with higher-wage positions receiving more entries. The comment period for this proposal closed on Oct. 24.
In its public comment, SHRM emphasized the H-1B program’s importance across employers of all sizes, its role in addressing critical skills gaps, and positive outcomes reported by members who sponsor H-1B workers. SHRM continues to support members in navigating these policies through resources, webinars, and personalized guidance from SHRM HR Knowledge Advisors.
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