As attorneys dedicated to helping immigrants and businesses of all sizes navigate our nation’s complex legal system, we’ve always believed in the promise of the American dream. The H-1B visa has long been a vital pathway for realizing that dream, allowing our country’s businesses to attract the world’s brightest minds and remain competitive on a global scale.
The events of the past few days, however, have sent waves of uncertainty and panic through the business and immigrant communities we serve. A sudden presidential proclamation, followed by a major proposed rule, signals one of the most significant shifts to the H-1B program in a decade. Many of you are understandably anxious, trying to understand what this means for your businesses, your employees, and your families. Our mission has always been to simplify these complexities and guide you through them with empathy and expertise. In that spirit, let’s break down these two major changes and what you need to know now.
The Immediate Shock: The $100,000 H-1B Fee
On September 19, 2025, President Trump issued a proclamation citing systemic abuse of the H-1B program to replace American workers with lower-paid labor. To address this, the proclamation introduced a staggering new requirement: a $100,000 fee for new H-1B petitions filed for candidates located outside the United States.
The initial announcement was ambiguous and caused widespread chaos, with some H-1B holders abroad desperately trying to re-enter the country. Fortunately, a series of clarifications from USCIS, CBP, and the White House has narrowed the policy’s scope.
Here is what we currently know about the $100,000 fee:
- Who IS Affected: The one-time fee applies only to new H-1B petitions filed after 12:01 a.m. ET on September 21, 2025. This will primarily impact the upcoming 2026 lottery cycle.
- Who IS NOT Affected: This is NOT a travel ban. The policy does not apply to:
◦ Current H-1B visa holders, who can continue to travel freely.
◦ H-1B renewals or petitions that were already filed before the deadline.
◦ Beneficiaries of the 2025 H-1B lottery whose petitions were filed prior to September 21, 2025.
◦ H-4 dependents.
This new fee represents a massive cost increase for employers, particularly those in the tech, engineering, and healthcare industries that rely on H-1B talent. Where employers previously paid fees in the range of a few thousand dollars, this new six-figure cost could be devastating, especially for early-stage startups and small businesses that have fewer resources to absorb such an expense. Alongside the fee, the Department of Labor has also launched “Project Firewall,” a program aimed at investigating and penalizing employers who are not in compliance with H-1B employment laws.
The Next Wave: The Proposed Weighted H-1B Lottery
As foreshadowed in the proclamation, the administration is taking further steps to overhaul the H-1B program. On September 24, 2025, the Department of Homeland Security (DHS) published a proposed rule in the Federal Register that would replace the random H-1B lottery with a weighted selection process based on salary. This proposal is currently in a 30-day public comment period.
The goal of this proposed rule is to prioritize the selection of higher-paid, and presumably higher-skilled, foreign workers. DHS notes that under the current random system, the highest wage levels (Level III and Level IV) are the least represented among selected petitions. The new system aims to incentivize employers to offer higher wages.
Here is how the proposed weighted selection would work:
- Instead of a purely random selection, each unique beneficiary would be entered into the lottery pool multiple times based on the corresponding Occupational Employment and Wage Statistics (OEWS) wage level of the proffered salary.
◦ Wage Level IV (fully competent): Entered 4 times.
◦ Wage Level III (experienced): Entered 3 times.
◦ Wage Level II (qualified): Entered 2 times.
◦ Wage Level I (entry-level): Entered 1 time.
This is a critical distinction from a previously vacated 2021 rule, which would have ranked petitions strictly by wage level, effectively eliminating any chance for entry-level workers. This new weighted proposal still provides an opportunity for employers to secure H-1B workers at all wage levels, though it heavily favors those at the top. To ensure the integrity of this process, if multiple registrations are submitted for the same person, that individual will be assigned the lowest wage level indicated across all submissions to prevent gaming the system.
What This Means for You, Our Clients
Together, these changes create a perfect storm, pushing employers toward a more expensive and strategic H-1B process focused on senior, high-earning talent. The message is clear: the administration wants the H-1B program to be used for what it deems the “best of the best”.
For the diverse range of businesses we represent—from small mom-and-pop shops to large multinational corporations—this new landscape requires careful navigation. While larger companies may be able to absorb the $100,000 fee for top executives, many small and mid-sized businesses could be priced out of the program entirely. The weighted lottery adds another layer of complexity, forcing every employer to strategically consider compensation as a key factor in the selection process.
As we move toward the next H-1B season, it is more critical than ever to plan ahead. Unanswered questions remain, such as how the government will define a “new” petition or implement the “national interest” waiver for the fee. But what is certain is that the ground is shifting beneath our feet.
Our commitment to you remains unwavering. We are monitoring these developments minute by minute and are here to serve as your trusted guides. We will help you understand how these rules impact your specific circumstances, strategize for the coming lottery, and ensure you are positioned for success.
If you have any questions about how these changes may affect your business or your family, please contact us to schedule a consultation. In these uncertain times, you are not alone.
