Visa Lawyer Blog

Articles Posted in Employment Based Petitions

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payment-terminal-6400952_1280On September 19, 2025, the President issued a Proclamation on the Restriction on Entry of Certain Nonimmigrant Workers, requiring any new H-1B petitions to include an additional $100,000 payment as a condition for eligibility.

Following the President’s announcement, USCIS released clarification on the new fee requirement, specifying that the surcharge only applies to new H-1B petitions filed on or after 12:01 a.m. EDT on September 21, 2025. The fee is triggered only when the foreign national beneficiary is outside the United States at the time the petition is filed, and the petition requires visa issuance at a U.S. or port of entry notification.

Importantly, the USCIS guidance also clarifies who is exempt from the surcharge. For example, H-1B petitions filed before the effective date are not subject to the fee. Additionally, individuals already in H-1B status in the U.S.—such as those seeking extensions, amendments, or a change of employer—are not required to pay the surcharge under the current guidance. The responsibility for paying the fee rests with the petitioner (employer), and proof of payment must be included with the petition at the time of filing. USCIS instructs employers to submit the required fee using pay.gov, following the payment instructions.  

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ai-generated-8775233_1280On October 3, 2025, a coalition of labor unions, healthcare providers, academic institutions, and religious groups, filed a lawsuit urging a federal court to strike down the $100,000 fee imposed on new H-1B petitions by the Trump administration for workers outside the United States.

What the Lawsuit Says

The lawsuit, filed in the U.S. District Court for the Northern District of California, argues that the fee which took effect September 21, violates both the Immigration and Nationality Act and the Administrative Procedure Act. Plaintiffs claim the President lacks authority to unilaterally impose a fee of this kind, especially one designed to raise revenue or direct government spending.

The Trump administration’s sudden rollout of the H-1B fee caused immediate disruptions:

  • Workers abroad scrambled to return to the United States, paying steep travel costs.
  • Others inside the U.S. canceled planned international travel.
  • Some even asked to deplane midflight upon hearing the news.

The fee is seen by critics as a threat to institutions that rely heavily on skilled foreign workers—such as universities, health systems, and religious groups—particularly in fields already facing staffing shortages.

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people-4009327_1280On September 24, 2025, the Department of Homeland Security (DHS) issued a proposed rule that would change the current selection process for selecting H-1B visa petitions subject to the annual numerical limits established by the Immigration and Nationality Act.

Under the proposed rule, the current random lottery system would be replaced with a wage-based selection process that prioritizes the selection of H-1B workers offered higher salaries by sponsoring employers.

The goal is to better align the H-1B program with U.S. labor market needs by increasing the chances of selection for higher-paid, and presumably higher-skilled, foreign workers. This change aims to reduce the potential for abuse in the system, discourage mass low-wage registrations, and ensure that the most economically valuable positions are filled through the H-1B program.

What may change

Currently, the U.S. government selects H-1B visa petitions through a randomized lottery system due to the annual numerical cap on available visas. Employers first submit electronic registrations for each prospective H-1B worker during a designated registration period, typically held in March. Because the demand for H-1B visas consistently exceeds the supply, the U.S. Citizenship and Immigration Services (USCIS) conducts a lottery to determine which petitions can proceed with applying for H-1B visas.

There are two separate caps under the H-1B program: the regular cap of 65,000 visas and an additional 20,000 visas reserved for individuals who hold advanced degrees from U.S. institutions (commonly referred to as the master’s cap). All registered beneficiaries, including those with U.S. advanced degrees, are first entered into the regular cap lottery. After 65,000 are selected, those with U.S. master’s degrees who were not chosen in the initial round are entered into a second lottery for one of the 20,000 advanced degree slots.

This current system does not prioritize applicants based on wage levels, qualifications, or skills. Selection is purely random as long as the minimum eligibility requirements are met.

However, the Department of Homeland Security (DHS) is proposing changes that would shift the selection process to favor higher-paid workers.

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imageOn Friday evening, President Donald J. Trump signed an executive order establishing a new pathway to permanent residency called “The Gold Card.” This program creates a fast-track green card option for wealthy individuals who make significant “gifts” to the U.S. government through the Department of Commerce.

Highlights

Although clear guidance on the application process has not yet been provided, the executive order outlines several key features:

  • Unrestricted Gift requirement:

To qualify for an immigrant visa through the Gold Card program, applicants must provide an unrestricted gift (without conditions or limitations) to the Department of Commerce in the following amounts.

  • $1 million for individuals donating on their own behalf.
  • $2 million if the gift comes from a corporation or entity on behalf of an individual
  • Visa benefits: The gift can be used as evidence of eligibility under two employment-based categories:
    • Exceptional business ability and national benefit (8 U.S.C. §1153(b)(2)(A) and
    • National Interest Waiver (8 U.S.C. §1153(b)(2)(B))
      • Could be expanded to the EB-5 immigrant investor program under 8 U.S.C. 1153(b)(5).
  • Oversight and agencies involved: The Departments of Commerce, State, and Homeland Security are tasked with implementing the program, including setting up application, processing, status adjustment, and screening for public safety / national security.
  • Use of the funds: The money raised will go into a separate Department of Commerce fund, held with the Treasury, intended to promote commerce and American industry.
  • Timeline: The order gives the relevant secretaries 90 days to lay out implementation plans (application process, when gifts may start being submitted, fees, etc.)

Potential Legal Challenges

The Gold Card Executive Order, aimed at streamlining the visa process for wealthy donors may face several legal challenges. Plaintiffs could argue that it oversteps executive authority by altering immigration policy without congressional approval, potentially violating the Immigration and Nationality Act. Additionally, if the order is seen as favoring certain nationalities or industries, it may prompt lawsuits alleging discrimination or unequal treatment under the law. Legal battles may also arise from states or interest groups concerned about labor market impacts or federal overreach, leading to judicial review that could delay or block its implementation.

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ai-generated-9069946_1280The legal immigration landscape was shaken once again late Friday evening when the President issued a new proclamation barring new H-1B workers from entering the United States—unless their employers pay a $100,000 fee for each sponsored employee.

The proclamation took effect at 12:01 a.m. EDT on Sunday, September 21, and will remain in effect until a court order halts its implementation.

Emergency Litigation

A surge of emergency lawsuits is expected to be filed by impacted H-1B workers and their sponsoring employers, seeking a nationwide injunction to stop the implementation of the executive order. A court could issue an injunction as early as Monday. We will provide litigation updates as they develop in the coming days.

Highlights of the Executive Order

  • Effective today September 21, 2025, certain H-1B workers will be denied entry into the United States unless their employer pays a $100,000 fee on their behalf, according to the proclamation signed by President Trump late Friday.
  • Application: The ban on entry and the associated fee requirement applies only to any new H-1B visa petitions submitted after 12:01 a.m. eastern daylight time on September 21, 2025. This includes the 2026 lottery, and any other H-1B petitions submitted after 12:01 a.m. eastern daylight time on September 21, 2025.
  • The proclamation does not apply to:
    • any previously issued H-1B visas, or any petitions submitted prior to 12:01 a.m. eastern daylight time on Sept. 21, 2025.
    • does not change any payments or fees required to be submitted in connection with any H-1B renewals. The fee is a one-time fee on submission of a new H-1B petition.
    • does not prevent any holder of a current H-1B visa from traveling in and out of the United States.
  • Misuse of B Visas: The proclamation warns that individuals with approved H-1B petitions should not misuse B visas to enter the U.S. for jobs that start before October 1, 2026.
  • National Interest Exemptions: The proclamation grants the Department of Homeland Security authority to issue exemptions for individuals, specific employers, or workers in designated industries—if the agency determines that the H-1B employment serves the national interest and poses no threat to U.S. security or public welfare.
  • Termination: Absent a court order, this restriction will remain in effect for 12 months but may be extended based on recommendations from federal immigration agencies. An extension would continue the ban for individuals approved under the FY 2027 H-1B cap.
  • Changes to the Prevailing Wage: Besides restricting H-1B entry, the proclamation directs the Department of Labor to revise prevailing wage levels and prioritize H-1B approvals to high-skilled, high-paid H-1B workers.

In the hours after the proclamation was issued, chaos unfolded as H-1B visa holders, advised by their employers and legal counsel, abandoned flights and canceled international travel due to uncertainty about how the proclamation would be enforced at the U.S. border.

Adding to the uncertainty was the absence of clear guidance from immigration authorities, including the Department of Homeland Security (DHS) and Customs and Border Protection (CBP), about how the proclamation is to be enforced against current H-1B visa holders and approved beneficiaries.

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pumpkin-5517221_1280We are pleased to report that today the U.S. Department of State’s Bureau of Consular Affairs published the October 2025 Visa Bulletin.

In this blog post, we breakdown the movement of the employment-based and family-sponsored categories in the coming month.

USCIS Adjustment of Status

For adjustment of status filings to permanent residence in the month of October, USCIS will be using the Dates for Filing Chart for the employment-based and family-sponsored categories.

Highlights of the October 2025 Visa Bulletin

At a Glance

What can we expect to see in the month of October?

Employment-Based Categories

Final Action Advancements

  • At the start of the new fiscal year in October, the Final Action Dates for several EB-1, EB-2 and EB-3 countries will move forward, but none will advance by more than three and a half months, except for two notable exceptions:
    • EB-3 Other Workers China which will advance by 7 months and
    • The Final Action Date for EB-5 India will advance by almost 14 months

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update-1672349_1280On September 3, 2025, the Department of Homeland Security (DHS) announced the termination of the 2021 designation of Temporary Protected Status (TPS) previously granted to Venezuelans by President Biden.

The government’s actions mean that the 2021 designation for Venezuela TPS and any associated TPS-related protection and documentation for beneficiaries will expire on September 10, 2025. The termination becomes effective 60 days after publication of the Federal Register notice.

Venezuelans have long been targeted by the Trump administration due to organized crime from violent Venezuelan gangs such as the Tren de Aragua.

Therefore, it comes as no surprise that President Trump has called to dismantle TPS protections for Venezuelan nationals.

What this means

  • 2021 Venezuela TPS Designation: TPS will remain valid for current beneficiaries until September 10, 2025. The termination of the 2021 designation cannot take effect until 60 days after the termination notice is published in the Federal Register.

All TPS protection and associated work authorization will expire on the dates indicated above.

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september-5459588_1280We are pleased to report that today the U.S. Department of State’s Bureau of Consular Affairs published the September 2025 Visa Bulletin.

In this blog post, we breakdown the movement of the employment-based and family-sponsored categories in the coming month.

USCIS Adjustment of Status

For employment-based preference categories, the U.S. Citizenship and Immigration Services (USCIS) has confirmed it will continue to use the Final Action Dates chart to determine filing eligibility for adjustment of status to permanent residence in the month of September.

For family-sponsored preference categories, USCIS will also continue to use the Dates for Filing chart to determine filing eligibility for adjustment of status to permanent residence in the month of September.

Please click here for more information.

Highlights of the September 2025 Visa Bulletin

At a Glance

What can we expect to see in the month of September?

Employment-Based Categories

There will be no changes to the employment-based Final Action Dates and Dates for Filing for the month of September.

The Visa Bulletin contains an important note that says the Visa Office expects to reach the FY 2025 annual limit for most employment-based categories during August and September. When this occurs, affected categories will become “unavailable” and no visas will be issued.

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calendar-1559935_1280We are pleased to report that today the U.S. Department of State’s Bureau of Consular Affairs published the August 2025 Visa Bulletin.

In this blog post, we breakdown the movement of the employment-based and family-sponsored categories in the coming month.

USCIS Adjustment of Status

For employment-based preference categories, the U.S. Citizenship and Immigration Services (USCIS) has confirmed it will continue to use the Final Action Dates chart to determine filing eligibility for adjustment of status to permanent residence in the month of August.

For family-sponsored preference categories, USCIS will also continue to use the Dates for Filing chart to determine filing eligibility for adjustment of status to permanent residence in the month of August.

Please click here for more information.

Highlights of the August 2025 Visa Bulletin

At a Glance

What can we expect to see in the month of August?

Employment-Based Categories

Final Action Advancements

EB-2 Members of the Professions and Aliens of Exceptional Ability

  • EB-2 Worldwide, Mexico, Philippines retrogressed by 1.4 months to September 1, 2023

EB-3 Professionals and Skilled Workers and Other Workers

  • EB-3 India will advance by 1 month to May 22, 2013

EB-5 Unreserved Categories (C5, T5, I5, and R5)

  • India will advance by 6.5 months to November 15, 2019
  • China will advance by 22.5 months to December 08, 2015

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We are pleased to report that today the U.S. Department of State’s Bureau of Consular Affairs published the July 2025 Visa Bulletin.

In this blog post, we breakdown the movement of the employment-based and family-sponsored categories in the coming month.

USCIS Adjustment of Status

For employment-based preference categories, the U.S. Citizenship and Immigration Services (USCIS) has confirmed it will continue to use the Final Action Dates chart to determine filing eligibility for adjustment of status to permanent residence in the month of July.

For family-sponsored preference categories, USCIS will also continue to use the Dates for Filing chart to determine filing eligibility for adjustment of status to permanent residence in the month of July.

Please click here for more information.

Highlights of the July 2025 Visa Bulletin

At a Glance

What can we expect to see in the month of July?

Employment-Based Categories

Final Action Advancements

EB-1 Aliens of extraordinary ability, Outstanding Professors and Researchers, and Certain Multinational Managers or Executives

  • EB-1 China will advance by 1 week to November 15, 2022

EB-2 Members of the Professions and Aliens of Exceptional Ability

  • EB-2 China will advance by 2 weeks to December 15, 2020

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