EXECUTIVE ORDER ON H-1B VISAS

On Friday, September 19, 2025, President Trump issued an Executive Order entitled “Restriction on Entry of Certain Nonimmigrant Workers.”   The EO purports to address perceived abuses of the H-1B visa category, and cites unidentified studies that purport to show a 36% discount on wages for H-1B workers compared to “full-time, traditional workers.”  It also cites “recent data” that shows unemployment rates among workers in computer occupations “jumped” from 1.98% in 2019, to 3.02% in 2025.  It cites “reports [that] also indicate that many  American tech companies have laid of their qualified and highly skilled American workers and simultaneously hired thousands of H-1B workers.”  Finally, it cites a “2017 study” that showed, except for the importation of foreign workers into the computer science field, the wages for American computer scientists would have been 2.6 to 5.1%  higher in 2001 (not a typo), i.e., nearly 25 years ago,

Based on this “data”, the EO finds that the “unrestricted entry . . .  of certain foreign workers . . . would be detrimental to the interests of the United States because such entry would harm American workers,  including by undercutting their wages.” 

The EO then states that it becomes effective at 12:01 a.m., Sunday, September 21, 2025. 

(NOTE:  Because this rule has just been issued, and no agency has issued regulations to implement it, we recommend that all H-1B visa holders (or individuals who have been approved for a change of status to H-1B from another status) NOT travel outside of the US until those regulations are issued. 

We also recommend that if a person with an existing, valid H-1B visa is currently outside of the US, they should return to the US prior to 12:00 midnight on September 20, 2025, if at all possible.  

Even though the EO appears to apply only to new H-1B Petitions filed for beneficiaries who currently are outside of the US, much of the EO is confusing as to the roles of USCIS and the State Department, and it is possible that the personnel at CBP may be confused regarding the application of the EO and may exclude individuals who enter or try to enter after the EO’s effective date, even if they received their H-1B visas before now.)

Under the EO, a number of new rules will apply to certain H-1B petitions for a period of one year from that effective date.  The comments below summarize those new rules; the highlighted portions are designed to give context to the pertinent portions of the new rules:

Section 1.  Restriction on Entry

1. The entry into the US of H-1B workers is restricted (i.e., prohibited) unless the H-1B petition is “accompanied by or supplemented by” a fee of $100,000, or the payment of the fee is excused by the issuance of a waiver under (3), below.  

(NOTE: 

This part of the rule requires the employer to submit the payment to USCIS when it submits the petition to that agency.

The phrase “or supplemented by” is confusing. 

H-1B Petitions are filed with USCIS, regardless of where the worker is located at the time of filing.  USCIS is part of DHS.  

H-1B Petitions cannot be filed with the State Department (DOS), as it has no power to issue any decision on the petition; DOS only has the power to issue a visa to the worker, and that can occur only after USCIS issues its approval of the petition.)

2. USCIS is prohibited from issuing a decision on any H-1B Petitions for workers who are currently outside the US if the $100,000 fee does not accompany the petition for such workers,  for a period of 12 months.

(NOTE:  this section again confirms that the payment must be sent to USCIS with the petition.)

3. This rule/restriction does NOT apply to any individual noncitizen, all noncitizens working for a company, nor to all noncitizens working in an industry, if USCIS determines (in its discretion) that the hiring of such noncitizens as H-1B workers is in the national interests AND does not pose a threat to the security or welfare of the US.

(NOTE:   This section uses language similar to the language used by CBP to permit individuals to enter the US, and by DOS to approve visas, during the COVID 19 pandemic.)

Although the rule appears to require that the employer submit the $100,000 fee with the petition that is filed with USCIS, the next section contains highly confusing directions regarding the role of the State Department:

Section 2:  Compliance

1. Employers shall, prior to filing the petition for a noncitizen who is physically outside of the US, obtain and retain documentation proving that it has paid the $100,000 fee.

(NOTE:

This requirement is in direct conflict with item 1 under Section 1, which requires the employer to submit the $100,000 fee WITH the visa petition that it files with USCIS.)

2. DOS shall verify receipt of the $100,000 payment during the H-B visa petition process

(NOTE:

If the payment is made to USCIS per Section 1, why should DOS verify receipt of a payment to USCIS?  I.e., if the payment is made to USCIS, how will DOS know it has been made?  If USCIS  is the agency that receives the payment, and it verifies that payment to DOS, what purpose is served by DOS then verifying something to USCIS that USCIS  already knows?  If the payment is to be made to DOS “during the H-1B visa process”, how will DOS know the case to which it applies, so that it can notify USCIS with accuracy?)

AND

DOS shall approve only those visa petitions for which the employer has paid the $100,000. 

(NOTE:

DOS does not have the power to approve a visa petition; only USCIS has that power. 

DOS only has the power to process and approve or deny visa applications, which are submitted to DOS on a different form than the form used to file a petition with USCIS.)

3. USCIS and DOS are directed to take all necessary steps to deny entry of any H-1B worker whose employer has not made the $100,000 payment.

Section 3.          Scope and Implementation of Restriction in Entry

1. This rule only applies to noncitizens who enter or attempt to enter the US after the effective date stated above (12:01 a.m., Sunday, September 21, 2025).

2. Not more than 30 days after the completion of the 2026 H-1B Lottery, DOS, the Attorney General, the Secretary of Labor, and DHS shall submit a recommendation to the President on whether an extension or renewal of this EO is in the interests of the US.

Section 4.  Amending the Prevailing Wage Levels

1. DOL will initiate a rulemaking process to revise the prevailing wage levels to levels consistent with the policy goals of this EO.

(NOTE:                The creation of prevailing wage data under the system used by DOL is based on gathering relevant data that identifies the average wage for a given job, in a given industry, in a given area of the US.  That process should not be driven by policy goals, because a policy goal invariably will compromise the accuracy of DOL’s effort to select accurate and relevant wage data.    Using policy goals to drive the wage data gathering process will compromise the accuracy of Prevailing Wage Determinations  that companies use for H-1B petitions as well as multiple types of employment based green card cases.)

2. DHS will initiate a rulemaking process to prioritize the admission as nonimmigrants of high-skilled and high-paid noncitizens.

(NOTE: Admission of noncitizens is controlled by Customs and Border Protection (CBP), a part of DHS.  CBP performs these duties when a person arrives at a land port or an airport and CBP reviews that person’s visa and other documents, and makes a decision to admit or exclude the applicant.    It is not clear what CBP can do to prioritize the inspection process for high-skilled and high-paid noncitizens.   Perhaps CBP will establish a priority line for inspections of those travelers, but that will  not make much difference in the long run; if a person lands at LAX or Atlanta, or arrives at a land entry point, and is allowed to use a quicker inspection process, it is highly unlikely that the H-1B worker using that line will be ready to go to work any sooner than the person who is in another, slightly slower line.)

This summary should not be considered to constitute legal advice to any person or entity; every situation is different and if the reader wishes to obtain legal advice for his or its particular circumstances, please contact Chapman & Roberts for a consultation at  (336) 334-0034.