Presidential Proclamation on H-1B Restrictions and Broader Legal Context

09-29-2025 Update: Gunn-Menefee has developed a quick reference file that you can download.

On September 19, 2025, the President issued a proclamation on H-1B Restrictions regarding the entry of H-1B specialty occupation workers, absent payment of a punitive and exorbitant filing fee. This development not only reshapes the financial and compliance obligations for employers but also raises important questions about the scope of presidential authority in immigration matters and the statutory framework for immigration fee setting.

Key Takeaways from the Proclamation on H-1B Restrictions

• $100,000 Payment Requirement: Employers must pay $100,000 for each H-1B petition filed on behalf of workers outside the United States, or the petition will not be approved. 

• Duration: Effective from September 21, 2025, through September 21, 2026, unless extended. 

• Waivers: The Secretary of Homeland Security may exempt individuals, companies, or industries if doing so is in the national interest. 

• Employer Compliance: Employers must retain proof of payment; the State Department will verify payment before issuing visas. 

• Denial of Entry: Beneficiaries of H-1B petitions without the required payment will be refused admission. 

• Future Review: Within 30 days after the next H-1B lottery, federal agencies will recommend whether to extend restrictions. 

• Prevailing Wage Changes: The Department of Labor will propose higher prevailing wage levels; DHS will prioritize high-skill, high-wage H-1B petitions. 

This Proclamation raises a series of questions on the President’s authority to take these actions through Presidential Proclamation in the face of established statutory procedures.

Question 1: Does President Trump have the legal authority to take these actions?

While presidential proclamations can significantly impact immigration, they are not unlimited. Some of the limits on presidential proclamations include the following:

1. Statutory Limits
   The President’s authority to suspend entry or impose restrictions comes primarily from the Immigration and Nationality Act (INA), particularly 8 U.S.C. §§ 1182(f) and 1185(a). However, this authority must align with the broader statutory scheme created by Congress, which sets priorities such as family reunification, humanitarian protections, and employment-based admissions.
2. Constitutional Constraints
   Congress holds plenary power over immigration. While the President can act under delegated authority, proclamations cannot override or rewrite immigration law. Actions that conflict with existing statutes risk being challenged as unconstitutional.
3. Judicial Review
   Courts can review proclamations to ensure compliance with statutory and constitutional limits. For example, in Trump v. Hawaii, the Supreme Court upheld a declaration based on national security rationale but underscored that actions must have a rational basis tied to statutory authority.
4. Practical Effect
   Proclamations are most effective when they regulate entry (who may come into the U.S.), but they cannot unilaterally alter statutory procedures, such as how USCIS sets filing fees.

Question 2: If the President cannot unilaterally alter statutory procedures, including setting filing fees, what is the statutory process for setting USCIS fees under the Administrative Procedures Act?

This proclamation proposes a sharp contrast with the required statutory process for setting USCIS fees. While a proclamation can impose temporary restrictions or conditions, changes to USCIS filing fees must follow a structured regulatory process under the Administrative Procedure Act (APA).

Key steps in fee adjustments include:

1. Proposal of a Rule – DHS publishes a proposed rule in the Federal Register.
2. Public Comment Period – Stakeholders may provide feedback on the proposal.
3. Review and Adjustment – USCIS reviews comments and may adjust the proposal.
4. Final Rule Publication – DHS publishes the final rule, including an effective date.
5. Implementation – USCIS updates forms, systems, and schedules to reflect new fees.

Question 3. What does INA Section 286(m) say about the amount DHS is authorized to charge for its filing fees?

The statute specifies that these fees should be set at a level that ensures the recovery of the full costs of providing all such services. This includes the costs of similar services provided without charge to asylum applicants and other immigrants. The statute also allows for the fees to be set at a level that will recover any additional costs associated with the administration of the fees collected.

Conclusion

This proclamation creates an immediate financial barrier for employers relying on H-1B professionals abroad while signaling broader policy goals: raising wage standards and prioritizing higher-paid workers. However, its reach is legally limited. Unlike formal fee adjustments governed by INA § 286(m) and the APA, proclamations cannot substitute for the statutory process of immigration fee-setting.

Due to the conflict found here between the President’s proclamation and established statutory authority and procedures needed to change USCIS filing fees, it is anticipated that the legality of this proclamation will be challenged shortly in federal court. We will be closely monitoring this situation, and we will provide updates as soon as they happen. If you have questions or need immediate assistance, please contact us.