H-1B visa order leaves stakeholders in limbo

An executive order signed by President Donald Trump last month has left business immigration attorneys scrambling to understand its potential fallout and impact on their clients.

On Sept. 19, Trump signed the “Restriction on Entry of Certain Nonimmigrant Workers” proclamation, mandating a new $100,000 fee for new H-1B visa petitions filed beginning on Sept. 21.

The H-1B visas allow employers to hire foreign workers in “specialty occupations” that require four-year college degrees, such as technology, engineering and medicine, on a temporary basis.

Charlottesville attorney Jennifer Minear, director of McCandlish Holton’s immigration practice group, said her inbox “exploded with inquiries about the proclamation” in the days following the announcement.

“To say that I have been fielding concerned calls about this issue would be a considerable understatement,” Minear said.

Henrico attorney Dustin Dyer, whose firm solely focuses on immigration law, said the proclamation could have impacts beyond the ultimate goal of the order.

“The stated aims of the proclamation are to curb H-1B program abuses by prioritizing high-skilled, high-paid workers and to avoid the displacement of U.S. workers,” Dyer said. “While the stated aim sounds lofty, the restrictions imposed by this proclamation are short-sighted and detrimental to the U.S. economy.”

Ultimately, attorneys in the business immigration space have cautioned that advice to clients remains subject to change as the situation develops, with U.S. Citizenship and Immigration Services providing updates as recently as Oct. 20 on the proclamation, clarifying who is subject to the fee and exemptions.

“Because clients simply do not know whether this fee will apply, and because they know they can’t pay the fee if it does apply, I am already seeing multiple clients question whether they should proceed with job offers to those seeking H-1B status,” Minear said.

Proclamation

Per the executive order, the $100,000 fee for new H-1B applicants went into effect on Sept. 21 and would remain effective for one year, with the goal to target alleged “abuse” of the visa system by some employers.

The order cites statistics showing a growing percentage of foreign workforce share in areas such as computers and math, which the White House claimed “has made it even more challenging for college graduates trying to find IT jobs, allowing employers to hire foreign workers at a significant discount to American workers.”

To say that I have been fielding concerned calls about this issue would be a considerable understatement.

— Jennifer Minear, Charlottesville

Left unanswered in the proclamation was who would be on the hook for the $100,000 fee and which specific applicants are exempt from the fee.

“The proclamation was, to put it generously, poorly drafted and missing a lot of important information necessary to understand its scope and meaning,” Minear said.

On Oct. 20, USCIS issued guidance related to the $100,000 proclamation, clarifying that the fee does not apply to “an alien inside the United States” requesting an amendment, change or status or extension of stay, and that current H-1B visa holders are not prevented from traveling in and out of the country.

USCIS further stated that the secretary of Homeland Security can grant exemption to the $100,000 payment “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” and that no American worker can fill that role.

Notably, the updated guidance includes the terms “extraordinarily rare” and “high threshold,” terms absent from the initial executive order.

Minear said that the “national interest” exemption “is narrowed considerably” by the USCIS language.

“I am extremely skeptical that anyone will be approved for an exemption based on the process and criteria described,” Minear said.

USCIS also provided a pay.gov link through which “petitioners should submit the required $100,000 payment” and clarified that petitioners must make payment prior to filing with USCIS.

Not explicitly clarified in the updated guidance was who exactly is supposed to pay the $100,000 fee.

While the stated aim sounds lofty, the restrictions imposed by this proclamation are short-sighted and detrimental to the U.S. economy.

— Dustin Dyer, Henrico

Minear said her clients, many of whom are in the health care or education industries, are seeking guidance on next steps regarding the fee.

“Maybe a company like Amazon or Meta could afford to pay $100,000 per worker to hire H-1B employees,” Minear said. “My clients sure can’t.”

The updated guidance by USCIS comes as two federal lawsuits have been filed challenging the executive order.

The U.S Chamber of Commerce filed suit in the U.S. District Court for the District of Columbia on Oct. 16, arguing that Congress has the authority over H-1B visas and that the $100,000 fee would inflict significant harm on American businesses.

Some two weeks earlier, a diverse group of plaintiffs representing multiple industries filed suit in the U.S. District Court for the Northern District of California, providing similar arguments and claiming harms to health care and education employers.

Due to the pending federal suits, Minear cautioned that it is “exceedingly difficult to advise clients in this environment.”

Looking ahead

Dyer anticipated potential economic impacts should the executive order survive scrutiny by the federal courts.

“H-1B professional workers, particularly those in fields like technology, health care and research, play a critical role in driving innovation and filling labor gaps that U.S. workers cannot always address,” Dyer said. “Limiting their entry by imposing an outrageous fee to utilize the H-1B program not only threatens America’s global competitiveness but also undermines businesses and industries that rely on specialized skills.”

Minear said her office receives so many inquiries on the H-1B visa issue that she has created templated email responses to the inquiries.

“There are, of course, no clients who can afford to pay a $100,000 additional fee to use the H-1B program, so if the fee is allowed to stand, it will effectively gut the H-1B visa program,” Minear said.

Dyer noted a possible alternative for long-term success that he theorized would benefit all stakeholders.

“The long-term economic costs far outweigh any perceived short-term benefits, and the U.S. should instead focus on policies that support both domestic workers and the talent we attract from around the world,” Dyer said.

Ultimately, Minear said the situation remains fluid while practitioners await more definitive guidance from the federal government and the resolution of the federal lawsuits.

“Hopefully, we will soon have an injunction from a federal District Court or, at minimum, further guidance from the administration that blunts the catastrophic impact of this proclamation on sectors of the economy that rely heavily on H-1B workers,” she said.

Specifically, Minear emphasized that H-1B visas are often the only temporary visa status available to Virginia’s doctors, lawyers, architects, engineers and teachers.

“The impact on Virginia’s education and health care system is certain to be profoundly negative if the proclamation remains in effect,” she said.