On October 20, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) released new guidance on President Trump’s proclamation, Restriction on Entry of Certain Nonimmigrant Workers. The new guidance answers questions on who is subject to the increased fee, how and when to make the payment, and exceptions granted by the department.
Background
On September 19, President Trump issued a proclamation that requires employers to pay a $100,000 fee per H-1B petition in order to bring new H-1B workers into the U.S. The proclamation took effect at 12:01 a.m. on September 21. Shortly after the proclamation was issued, USCIS, U.S. Customs and Border Protection, and the White House released additional guidance clarifying which petitions the fee requirements apply to. They specified that the fee does not apply to petitions filed before the effective date, to already approved petitions, to beneficiaries who already hold valid H-1B visas, or to individuals seeking to renew their H-1B visas.
New Guidance
The new USCIS guidance explains who is subject to the $100,000 payment. It states that the proclamation applies to new H-1B petitions filed at or after 12:01 a.m. on September 21 on behalf of beneficiaries who are outside of the United States and do not have a valid H-1B visa. It does not apply to any previously issued or currently valid H-1B visa, or any petitions submitted prior to the effective date.
Notably, the guidance states that the proclamation does not apply to a petition filed after the effective date that is “requesting an amendment, change of status, or extension of stay for an alien inside the United States where the alien is granted such amendment, change, or extension.” The guidance also notes that beneficiaries of such petitions remain exempt from the payment if they later leave the U.S. and apply for a visa or reenter on a valid H-1B visa. However, if a petition filed after the effective date requests a change of status or amendment or extension of stay and if USCIS determines that the petitioner is ineligible for a change of status or an amendment or extension of stay, the proclamation fee will apply.
The guidance also provides information on how and when the $100,000 payment must be made. Petitioners are directed to submit the $100,000 payment using pay.gov, following instructions on the website to make the payment. The guidance states that payments must be made prior to filing a petition with USCIS as petitioners will need to submit proof of payment from pay.gov or “evidence of an exception from the $100,000 payment from the Secretary of Homeland Security at the time of filing the H-1B petition.”
Finally, the guidance provides insight on potential exceptions granted by the secretary of Homeland Security. It states that exceptions to the $100,000 payment will be granted “in the extraordinarily rare circumstance where the Secretary has determined that a particular alien worker’s presence in the United States as an H-1B worker is in the national interest, that no American worker is available to fill the role, that the alien worker does not pose a threat to the security or welfare of the United States, and that requiring the petitioning employer to make the payment on the alien’s behalf would significantly undermine the interests of the United States.” It directs petitioning employers seeking an exception to send their request and supporting evidence to [email protected].
Looking Ahead
As of this publication, there are two ongoing lawsuits challenging the proclamation in federal court. CUPA-HR will continue to monitor for additional guidance from federal agencies and keep members apprised of legal updates related to the proclamation. Updates will be provided through CUPA-HR News and the H-1B Visa Toolkit.