Employment & Labor Insider

UPDATE (9:31 PM Saturday, September 20): Today the USCIS issued official policy guidance confirming the Proclamation does not apply to existing H-1B visa holders and does not affect the ability of any current H-1B visa holder to travel to the United States. Based on the new guidance, H-1B visa holders outside the United States do NOT need to return before 12:01 AM Eastern Time on September 21.

However, in light of these developments all H-1B visa holders should exercise extreme caution with respect to departing the United States.

Here is our original post, published earlier today:

On Friday, President Trump signed a presidential proclamation imposing a $100,000 fee on H-1B visa holders.

A fact sheet regarding the proclamation is available here.

Foreign nationals whose H-1Bs were not filed with the fee will be restricted from entering the United States starting at 12:01 a.m. Eastern Time Sunday, September 21. (EDITOR'S NOTE: Subsequent guidance from the USCIS linked in the update above clarifies that this is not correct.)

Therefore, individuals in H-1B status who are currently outside the United States must return today before midnight. If they cannot reenter before the deadline, they should not attempt to do so until further guidance is provided. (EDITOR'S NOTE: Subsequent guidance from the USCIS linked in the update above clarifies that this is not correct.)

H-1B visa holders who are currently in the United States should avoid any future travel outside the country until further direction is provided. 

The $100,000 fee applies for the 12 months after the effective date of the proclamation, but that time frame can be extended.

There are limited exceptions for those working “in the national interest” and who do not “pose a threat to the security or welfare of the United States.” No guidance has been provided as to how a company or individual can qualify for this exception or the process for applying for it.

The proclamation also directs the Secretary of Labor to engage in the rulemaking process to amend prevailing wage levels, and for the Secretary of State to issue guidance to prevent the misuse of B visas by beneficiaries of H-1B petitions.

Litigation challenging the proclamation is expected soon. We will keep you posted.