© Lawyer Farhad Sethna, 2025
On September 19, 2025, President Donald Trump issued a proclamation titled “Restriction on Entry of Sure Non-Immigrant Staff“, the place he focused H-1b employees.
This text will try to research and summarize every of the sections of the proclamation, so far as doable. That is certainly not the ultimate phrase on this proclamation; nevertheless, it could be an instructive and illustrative information to start analysis and analyze any future clarifications which could come out of the White Home or federal businesses.
To start with, a proclamation shouldn’t be an government order. An government order directs and governs actions by authorities officers and businesses. It has the pressure of legislation. It have to be printed within the Federal Register and within the Code of Federal Laws.
Proclamations, then again, cope with the actions of personal people, and would not have the pressure and authority of legislation except the president is given the authority over such non-public people by the structure or a federal statute.
See the Library of Congress’ rationalization of the variations between an EO, a Proclamation, and an Govt Memorandum, at
Therefore, it’s uncertain that the chief proclamation of September 19 has the complete pressure of legislation as would an government order.
Nonetheless, the precise impact of such proclamation will likely be that authorities businesses will put some, or all the proclamation into impact absent any judicial Injunction.
What precisely is the proclamation, and what does it say?
The proclamation begins with a proof of the reasoning for the proclamation: briefly, the White Home claims that corporations have abused the H1B visa program by bringing expert immigrants into the USA to carry out work, typically at wages decrease than these paid to US employees. The proclamation additionally goes on to supply examples (with out quotation) of assorted corporations, which have laid off US employees with the intention to rent H1B employees. As well as, the proclamation cites statistics – once more, with none attribution – of alleged US unemployment whereas overseas employees fill US jobs.
Citing these unattributed grounds, the proclamation then goes to put out a treatment for curing these alleged results within the H1B program.
An evaluation of every part of the Proclamation, and it’s potential results, unknowns, and uncertainties follows.
Let’s understand that the President orders sure actions to be taken by this proclamation. You will need to do not forget that the president has no authority over people and fewer particularly offered by legislation. But, on this proclamation, Trump orders businesses to implement restrictions – absent any authorized authority to take action – on H1B employees. A proclamation shouldn’t be the proper car to do that. This could have been initiated by government order, which Trump can challenge with the intention to direct executive-branch businesses to conduct operations a sure means.
Part 1. Restriction on Entry. (a) Pursuant to sections 212(f) and 215(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(f) and 1185(a), the entry into the USA of aliens as nonimmigrants to carry out providers in a specialty occupation beneath part 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C. 1101(a)(15)(H)(i)(b), is restricted, aside from these aliens whose petitions are accompanied or supplemented by a cost of $100,000 — topic to the exceptions set forth in subsection (c) of this part. This restriction shall expire, absent extension, 12 months after the efficient date of this proclamation, which shall be 12:01 a.m. jap daylight time on September 21, 2025.
Clarification: (a) the president orders H1B aliens’ Entry to the USA shall be restricted except their H-1b petitions have been accompanied by or supplemented by a cost of $ 100,000. The proclamation is efficient on September 19, 2025, and this restriction goes into impact on September 21, 2025 parentheses Sunday) at 12:01 AM Jap daylight time. So presumably the price would Not should be paid by any employer who filed the petition BEFORE the efficient date.
Nonetheless, there may be further complication: WHO precisely is topic to this Proclamation? H-1b’s who have been within the USA when their H-1b standing was authorised and subsequently return to their nations for a visa issuance? H-1b’s who have been NOT topic to the H-1b cap and subsequently NOT included within the lottery? H-1b’s who modified jobs from an present H-1b employer-petitioner to a different? H-1b’s who’re employed by non-profit or cap-exempt entities?
(b) The Secretary of Homeland Safety shall prohibit choices on petitions not accompanied by a $100,000 cost for H-1B specialty occupation employees beneath part 101(a)(15)(H)(i)(b) of the INA, who’re at present outdoors the USA, for 12 months following the efficient date of this proclamation as set forth in subsection (a) of this part. The Secretary of State shall additionally challenge steering, as mandatory and to the extent permitted by legislation, to forestall misuse of B visas by alien beneficiaries of authorised H-1B petitions which have an employment begin date starting previous to October 1, 2026.
This proclamation goes to be in impact for 12 months after September 21, 2025, ie, September 21, 2026 at 12:01 Am Jap Time. As soon as once more, the Proclamation clearly states that the $ 100,000 price applies to visa candidates who’re OUTSIDE the USA. So for many who are contained in the USA and don’t go away, the $ 100,000 price or supplemental price ought to presumably NOT apply.
The second clause of clause 1(b) is a bit more troubling:
“The Secretary of State shall additionally challenge steering, as mandatory and to the extent permitted by legislation, to forestall misuse of B visas by alien beneficiaries of authorised H-1B petitions which have an employment begin date starting previous to October 1, 2026.”
It is a complicated conflation of two points: misuse of B visas, by beneficiaries of authorised H1B petitions, with beforehand authorised H-1b petitions. It isn’t clear what misuse is alleged; it is usually not clear why somebody on an authorised H-1b petition with an employment begin date previous to October 1, 2026 must resort to utilizing a B visa. Sometimes, B visas are issued and utilized by aliens looking for to enter the USA both for enterprise (B – 1) or pleasure (B –2).. Lastly, we’ve got already seen that any restriction issued by this administration is usually heavy handed, overbroad, and seeks to repair an issue which regularly doesn’t exist. This complete Proclamation is a case-in-point.
(c) The restriction imposed pursuant to subsections (a) and (b) of this part shall not apply to any particular person alien, all aliens working for a corporation, or all aliens working in an business, if the Secretary of Homeland Safety determines, within the Secretary’s discretion, that the hiring of such aliens to be employed as H-1B specialty occupation employees is within the nationwide curiosity and doesn’t pose a risk to the safety or welfare of the USA.
Exemption from the $ 100,000 price is feasible. Nonetheless, the standards for such an exemption are unknown, how the exemption can be utilized is unknown, and the method of making use of for such an exemption can be unknown. So, a lot of unknowns at this level on the $ 100,000 price exemption.
Sec. 2. Compliance. (a) Employers shall, previous to submitting an H-1B petition on behalf of an alien outdoors the USA, acquire and retain documentation displaying that the cost described in part 1 of this proclamation has been made.
This part may be very complicated. The place does the employer pay this price? To whom? That is just for staff who’re outdoors the USA, so subsequently, staff who’re making use of to vary standing inside the USA, shouldn’t be topic to this requirement.
(b) The Secretary of State shall confirm receipt of cost of the quantity described in part 1 of this proclamation in the course of the H-1B visa petition course of and shall approve solely these visa petitions for which the submitting employer has made the cost described in part 1 of this proclamation.
The Secretary of State must confirm receipt of cost. Does this imply that cost have to be made by the employer to the USCIS, which is the contact company for granting H1B classifications, or the Division of State, which is the company for truly issuing H-1b visas to potential H1B employees who’re abroad? Once more, unclear. What is obvious, once more, is that the price DOES NOT apply to H-1b employees who apply for Change of Standing to H-1b whereas WITHIN the USA. The price is triggered solely within the case of H-1b’s who’re OUTSIDE the USA.
One other issue which is unclear is whether or not the price is triggered even when the H-1b employee leaves the USA to get his or her visa issued at a US consulate abroad. That’s, suppose the employee was an F-1 scholar within the USA, secured a slot within the visa lottery, after which leaves the USA? Is the price triggered for such an worker too? The primary sentence of the Proclamation, Part 1(a) clearly states: “The Secretary of Homeland Safety shall prohibit choices… for H-1B specialty occupation employees… who’re at present outdoors the USA…” This would appear to exempt such worker.
Underneath (c), the DOS and DHS will coordinate to take any motion and deny entry for any H1B for whom the potential employer has not made the cost of $100,000. So clearly, the employer who’s obligated to pay the $ 100,000 price is a potential employer, that implies that the employer is submitting a brand new H-1b classification petition for the worker, and that the employer is accountable for the cost.
Sec. 3. Scope and Implementation of Restriction on Entry. (a) The restriction on entry pursuant to part 1 of this proclamation shall apply solely to aliens who enter or try and enter the USA after the efficient date of this proclamation as set forth in part 1(a) of this proclamation.
This proclamation applies solely to aliens who enter the USA after the efficient date of the proclamation, which is September 21, 2025. This apparently set off a mad sprint to return to the USA BEFORE the efficient date and time of the Proclamation, September 21, 2025 at 12:01 AM Jap Time. What of these staff who may no safe a flight again earlier than the Proclamation’s efficient date and time?
As soon as once more, this Administration’s propensity to make harmless people squirm and endure, make the whole system fall into chaos can’t be understood or underestimated. It appears as if the Administration rejoices in inflicting pointless cruelty on each residents and non-citizens, on tax paying corporations and tax-paying staff.
[I know of a case where an H-1b rushed to return to the USA and had to abandon an engagement to their prospective spouse – I am sure there are other such tragic occurrences]
Nonetheless, what shouldn’t be clear is which aliens this may have an effect on. Underneath 1(b), ‘the alien, whose petition shouldn’t be accompanied by the $100,000 cost’ conflicts with 2(a), compliance, which particularly requires a potential employer to show that cost has been made previous to submitting the H1B petition on behalf of an alien outdoors the USA. So if the petition was filed and authorised BEFORE the worker left the USA the $100,000 requirement shouldn’t be triggered. Or wouldn’t it? What’s an employer (and the hapless H-1b worker) alleged to do given the poorly drafted Proclamation?
(b) No later than 30 days following the completion of the H-1B lottery that instantly follows this proclamation, the Secretary of State, the Lawyer Normal, the Secretary of Labor, and the Secretary of Homeland Safety shall collectively undergo the President, by way of the Assistant to the President and Homeland Safety Advisor, a advice on whether or not an extension or renewal of the restriction on entry pursuant to part 1 of this proclamation is within the pursuits of the USA.
Underneath part 3(b), The H1B lottery that might finish roughly March 25-28 of 2026 will set off a 30 day window, throughout which the US Secretary of State, the Lawyer Normal, the Secretary of Labor, and the Secretary of Homeland Safety will submit a joint advice on whether or not an extension or renewal of this proclamation is within the curiosity of the USA or not.
Sec. 4. Amending the Prevailing Wage Ranges. (a) The Secretary of Labor shall provoke a rulemaking to revise the prevailing wage ranges to ranges in step with the coverage targets of this proclamation in step with part 212(n) of the INA, 8 U.S.C. 1182(n).
The Secretary of Labor is directed to provoke a rule-making in step with the coverage targets of this proclamation. It is a doubtlessly very dangerous clause certainly, perhaps much more dangerous than clause 1(a), the $100,000 rule. Why is it so harmful? As a result of it requires that the Secretary of Labor revise prevailing wage ranges that are expressly and impliedly going to rise with the intention to effectuate Trump‘s want that the H-1b needs to be reserved just for extremely expert and extremely paid employees. That is borne out by subsection B, beneath.
(b) The Secretary of Homeland Safety shall provoke a rulemaking to prioritize the admission as nonimmigrants of high-skilled and high-paid aliens, in step with sections 101, 212, and 214 of the INA, 8 U.S.C. 1101, 1182, and 1184.
No point out is product of the affected Visa classifications for such aliens, however from this subsection, it appears very clear that the coverage purpose of this proclamation is to restricted admission of H-1b’s solely to Extremely expert and Extremely paid staff. After all, that is along with the whopping $100,000 price, already paid by the employer for such aliens who’re already outdoors the USA. For example, will following the wage ranges now be required additionally for O-1 and L-1A and L-1B staff? How about E-1’s and E-2’s?
Sec. 5. Normal Provisions. This part units for the usual provisions in all the proclamations, and as a catchall for compliance with numerous legal guidelines.
(b) This proclamation shall be carried out in step with relevant legislation and topic to the provision of appropriations.
Nonetheless, relevant legal guidelines have to be in place with the intention to effectuate the phrases of the proclamation. There isn’t any relevant legislation referring to cost of the $100,000 further surcharge for H1B. There isn’t any relevant legislation associated to the use or alleged use of B visas for overseas employees who’ve already been granted an H1B. There isn’t any different relevant legislation, which might allow the Secretary of Labor to revise the methodology for issuing prevailing wage charges for occupations, as is effectuated at the moment. Therefore, there are important boundaries to implementation of this proclamation due to the shortage of legal guidelines that might allow implementation of those new restrictions and necessities.
In different phrases, Trump shouldn’t be an emperor. Just because he “promulgates” some idea or concept doesn’t make it legislation.
Conclusion.
As I famous above, that is by far, not the final phrase we are going to hear on this challenge. Nonetheless, my transient recommendation to all H-1b’s, together with those that have obtained an H-1b up to now, however whose visa has expired, is to carry off on any journey outdoors the USA, together with functions for visa issuance, till the complete results of this proclamation are revealed, and any litigation, injunction, or different authorized processes are concluded, and the federal government‘s authority and bounds are clearly established.
Else, it’s fairly doable that an alien H-1b employee touring innocently again to his or her house nation might discover a important impediment in returning to the USA except his or her employer pays the proclamation price of $100,000.
© Farhad Sethna, Lawyer, 2025
Farhad Sethna has practiced legislation for over 30 years. He was awarded his JD in 1990 and his MBA in 1991, each from the College of Akron. Since 1996, he has additionally been an adjunct professor of Immigration Legislation on the College of Akron, College of Legislation, in Akron, Ohio, the place he wrote and continues to make use of his personal immigration textbook. Lawyer Sethna is a frequent speaker at Persevering with Authorized Schooling {and professional} improvement seminars on numerous immigration-related matters. His apply is restricted to immigration and small enterprise. He has received awards for excellence in instructing and for pro-bono service. With places of work in Cuyahoga Falls, Ohio, Lawyer Sethna represents shoppers in all sorts of immigration circumstances earlier than federal businesses and the immigration courts nationwide. A non-public pilot, it’s Farhad’s purpose to fly to every of Ohio’s 88 county airports. Our quantity is: (330) 384-8000. Please ship your normal immigration inquiries to farhad@sethnalaw.com. We’ll attempt to reply as many questions as doable.
