Corporate Immigration Law News

On September 24, 2025, the Department of Homeland Security (DHS) published a proposed rule that would significantly alter the annual cap-subject H-1B lottery selection process, replacing the current randomized lottery with a wage-based weighted system. This change would give priority to higher-paid workers in the annual allocation of H-1B visas under the cap.

If the proposed rule becomes a final rule, it would prioritize the selection of H-1B cap-subject registrations based on the wage level offered to the prospective H-1B candidate, assigning more weight to those offered higher wage levels as defined by the Department of Labor’s (DOL) Occupational Employment and Wage Statistics (OEWS). Under the proposed rule, beneficiaries offered a position at the highest wage level (Level 4) would receive four entries in the lottery pool, whereas those offered a position at a normal entry-level wage (Level 1) would receive only one.

Clearly, the proposed rule would unfairly advantage the “hyperscaler” technology companies at the epicenter of the AI boom (e.g.; Amazon, Tesla, Google, Microsoft) who can offer higher level wages to their H-1B candidates, while distinctly disadvantaging early-career professionals, recent graduates, and employers in other industries. Moreover, the proposed rule relies on DOL wage levels as a proxy for skill, which may not accurately reflect the qualifications of foreign workers or the complexity of the proffered position. Additionally, the proposed rule would impose new obligations on petitioning employers during the H-1B registration process which do not exist under the current lottery system. For example, sponsoring employers would be required to certify the occupational code, wage level, and work location for each H-1B cap registration. In cases where a single beneficiary has multiple registrations from separate petitioning entities, the lowest wage level among all registrations would be used to determine the candidate’s selection weighting thus, introducing variables in the process which are outside of any one petitioning employer’s control.

For key details of the proposed H-1B Cap Selection change click here.

If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, Lin R. Walker, or Stacey A. Simon.

As you are aware, on September 19, 2025, the President signed a Proclamation requiring a $100,000 fee to accompany any new H-1B visa petition.

Since the Proclamation’s release, federal agencies including U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), and the U.S. Department of State (DOS) have issued memoranda and guidance.

Below are the key updates based on guidance that was released after the initial Proclamation:

Filing Fee for NEW Petitions:

A $100,000 fee must accompany any new H-1B visa petition filed after 12:01 a.m. EDT on September 21, 2025. This includes submissions for the 2027 H-1B lottery and all other new filings thereafter.

Agency Memoranda and Guidance Appears to Limit the Applicability of the Proclamation as follows:

• The Proclamation, including the $100,000 fee, does not apply to H-1B petitions submitted before 12:01 a.m. EDT on September 21, 2025, whether pending or approved.
• The Proclamation, including the $100,000 fee, does not apply to applications for H-1B visa issuance at U.S. Consulates, provided the H-1B petition was filed prior to 12:01 a.m. EDT on September 21, 2025.
• While there is no official guidance, based on anecdotal evidence, it appears that the Proclamation, including the $100,000 fee, does not apply to H-1B extensions filed on behalf of beneficiaries who are in the United States.

 Implementation Challenges & Potential Risks

• While agencies have issued such initial guidance, the guidance has been confusing, contradictory and incomplete.
• Without more coherent and comprehensive guidance, our advice remains that H-1B beneficiaries should avoid international travel wherever possible, as we believe the inconsistency in agency guidance is likely to result in delays and confusion at Ports of Entry (for admission to the U.S.) and U.S. Consular Posts (for issuance of H-1B visas).
• Additional agency guidance and instructions are expected in the coming days and we will continue to provide updates as they become available, including guidance as to whether the $100,000 fee applies to H-1B extensions, amendments or changes of employer filed on behalf of beneficiaries who are in the United States.

NEW DOL INITIATIVE – “Project Firewall” – New H-1B Enforcement Initiative

Separate from the Proclamation, the Department of Labor has initiated Project Firewall, targeting H-1B compliance.

Key takeaways include:

• Direct Oversight by DOL: The Secretary of Labor will certify all investigations into suspected violations.
• Penalties: Employers found noncompliant may face back wage payments, civil penalties, or disqualification from the H-1B program.
• Interagency Coordination: DOL will collaborate with DOJ, EEOC, and USCIS to ensure enforcement and eliminate discrimination.

Employers should immediately review internal H-1B procedures to ensure full compliance with wage and worksite obligations, including Public Access File recordkeeping as required under federal law.

Additional regulatory changes are expected, including:

• • DOL rulemaking to raise prevailing wage levels and restrict program abuse.
  • DHS proposals to prioritize H-1B lottery selection for high-skilled, high-wage applicants over lower-wage tiers

Conclusion

The Proclamation, along with the DOL’s increased enforcement effort, marks a significant shift in how the federal government is approaching the H-1B visa program. Employers are encouraged to act now to ensure their compliance practices, communicate on-going updates to their foreign national employees, and prepare for additional policy changes in the months ahead.

We will continue monitoring the situation and provide updates as information becomes available.

If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, Lin R. Walker, or Stacey A. Simon.

As you may be aware, last night the Trump Administration issued a Proclamation that will impact H-1B workers starting this Sunday, September 21 at 12:01AM.

While we do not yet have much information about how this will be implemented, here are some tips on how to deal with the fallout of the proclamation in the meantime;

• H-1B-sponsored employees who are currently outside of the United States should make all efforts possible to return to the U.S. today, before the effective date of the proclamation [12:01 a.m. EDT Sunday, September 21, 2025].
• Travel outside of the U.S. for visa processing/renewals will be impacted so H-1B workers should refrain from all international travel until the implementation of the proclamation is further clarified.

We are awaiting further guidance as to whether the $100,000 fee will apply to those who already have an H-1B approval or who have an H-1B petition pending. According to unofficial additional guidance, the $100,000 additional fee would only apply to new H-1B filings under next year’s H-1B cap registration lottery. There may be exemptions for H-1B workers whose work is in the national interest but this is not clearly defined.

It is important to note that Congress, not the executive branch, has the power to set visa fees. By imposing an additional $100,000 visa fee, the Proclamation bypasses Congress’ exclusive authority to regulate immigration fees.

For that reason, legal challenges are already being prepared but it is impossible to predict what the Courts will do.

In short, there is good reason to expect strong legal opposition to the Proclamation and possible court orders including injunctions limiting or halting enforcement.

We will continue to provide you with additional guidance and updates as we receive more information.

If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, Lin R. Walker, or Stacey A. Simon.

Effective September 6, 2025, the U.S. Department of State released a new policy regarding the adjudication of nonimmigrant visa applications for third country nationals (TCNs). TCNs are individuals who apply for a U.S. visa in a country that is neither their country of nationality nor their country of legal permanent residence. See full details here.

If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, Lin R. Walker, or Stacey A. Simon.