H-1B entry restrictions and the new $100,000 fee: What we know today

On Sept. 19, the White House issued a Presidential Proclamation restricting entry into the United States of foreign nationals in H-1B status. This rule went into effect at 12:01 AM on Sept. 21.

On Sept. 20, United States Citizenship and Immigration Services (USCIS) and US Customs and Border Patrol (CBP) issued memorandums providing additional clarifications on this proclamation.

This Clark Hill Immigration Update reflects what we know today. Overall, we continue to recommend that those in H-1B status stay in the U.S. and refrain from optional international travel; and those outside the U.S. in H-1B status make plans to return to the U.S. as soon as practical.

H-1B holders inside the U.S.

• Individuals with an approved H-1B petition are not impacted by this proclamation
• Individuals with a pending H-1B petition are not impacted by this proclamation
• Individuals who are preparing to file an H-1B extension, amendment, or change of employer are not impacted by this proclamation

H-1B holders outside the U.S.

• Individuals with an H-1B petition and a valid visa are not impacted by this proclamation, and may return to the U.S.
• Individuals with an approved H-1B petition and a scheduled visa appointment should not be impacted by this proclamation. Check in with your Clark Hill immigration attorney if you are currently outside the U.S. and awaiting your visa interview.
• Individuals with a pending H-1B petition should not be impacted by this proclamation

H-1B Daily Commuters

• Individuals with an approved H-1B petition are not impacted by this proclamation and are able to continue to work and travel
• Individuals with a pending H-1B petition are not impacted by this proclamation

Others

• Individuals who have never had an H-1B petition, and who must go through the H-1B lottery process, are impacted by this proclamation. A fee of $100,000 will need to accompany this type of petition. At this time, USCIS had not yet added this to the fee schedule. We are awaiting further guidance as to the implementation of this fee in the future.
• It is unclear at this time how this proclamation will impact CAP-exempt H-1B employers
• National Interest Exemptions: the proclamation mentions that national interest exemptions will be available but has not announced who is covered and how to meet this test yet.

Clark Hill is closely monitoring for developments and will share new information as it becomes available. Please connect with a Clark Hill Immigration Attorney for any urgent travel questions.

This publication is intended for general informational purposes only and does not constitute legal advice or a solicitation to provide legal services. The information in this publication is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel. The views and opinions expressed herein represent those of the individual author only and are not necessarily the views of Clark Hill PLC. Although we attempt to ensure that postings on our website are complete, accurate, and up to date, we assume no responsibility for their completeness, accuracy, or timeliness.