The Real Target of the $100,000 H-1B Fee May Be Harvard, Not Hyderabad
On Friday, the Trump administration issued an unprecedented proclamation announcing a new “supplemental entry fee” of $100,000 for foreign nationals seeking to enter the United States in H-1B status. The language was sweeping, and the initial read was that H-1B professionals and their families would face a six-figure hurdle tied to travel and reentry. Employers, immigration attorneys, and visa holders immediately scrambled to determine whether the rule applied retroactively, and if so, to whom. Panic followed. Those already abroad rushed to return to the U.S. before the policy took effect.
I was quoted by The Times of India in its article regarding the initial report. I stated that this proclamation was effectively, “Executive taxation without Congress approval”, and explained that, “Section 212(f) of the INA allows suspending entry, but it does not authorize a $100,000 charge or rewriting USCIS and DOS fee schedules by executive proclamation alone. This fee is unlawful on its face and appears entirely performative, calibrated to deliver a chilling effect on employers, and campuses.”
Then, late Saturday, came the administration’s clean-up. The Press Secretary tweeted that current H-1B holders and approved cases would not be charged and could travel and reenter as usual, and characterized the assessment as a one-time, petition-linked fee that would first show up in the next lottery cycle. More importantly, a USCIS memo and Department of State guidance followed, confirming that travel and renewals were unaffected and that the fee would apply prospectively only. USCIS’s memo put it plainly: This proclamation only applies prospectively to petitions that have not yet been filed. The proclamation does not apply to aliens who: are the beneficiaries of petitions that were filed prior to the effective date of the proclamation, are the beneficiaries of currently approved petitions, or are in possession of validly issued H-1B non-immigrant visas.” This language eased the immediate chaos for cap-subject H-1B employees at for-profit employers with petitions already filed or approved. As of now, they appear to be untouched by the proclamation and may continue to travel abroad, apply for H-1B visas, and file H-1B extensions or change-of-employer petitions. (Though I wouldn’t recommend travelling abroad at this time).
But not everyone was spared. In The Times of India’s follow-up report after the weekend guidance, I focused on who remains exposed and the possible rationale: “The proclamation still looms, quietly aligned against cap-exempt institutions that cannot afford a six-figure payout or a political war. These institutions may soon find themselves in the crosshairs. Not because they are immigrants, but because they are liberals.”
This omission for cap-exempt employment in the administration’s guidance looks like design, not oversight. Even if already approved/filed cap-subject H-1B workers can keep traveling and renewing, next fiscal year’s H-1B cap-subject cases remain at issue and will likely require litigation to resolve. Again, it is also telling that there is still no carve-out for cap-exempt employers. Universities and research centers are currently still subject to the fee and bear the heaviest burden, for now. That supports the inference that the intended targets may not have necessarily been software developers from Hyderabad, but faculty and researchers at elite liberal universities such as Harvard, which notably refused to back down when threatened with federal funding cuts by this administration. Shifting cost and risk onto the cap-exempt H-1B workforce they employ is a direct and effective strike that would impact certain institutions harder than funding cuts.
Update: FY2025 H-1B Cap Registration Results
The U.S. Citizenship and Immigration Services (USCIS) recently announced the Fiscal Year 2025 H-1B cap lottery results, revealing a significant drop in the number of registrations—470,342, down 38.6% from 758,994 in FY 2024. This reduction is attributed to new USCIS policies aimed at enhancing program integrity, including curbing the unusually high rate of multiple registrations per individual last year.
In the FY2025 H-1B Cap lottery, USCIS selected 114,017 beneficiaries, resulting in 120,603 selected registrations. Given these numbers, the likelihood of a second lottery for the FY 2025 H-1B cap appears slim.
USCIS to Conduct Second Random Selection for FY 2024 H-1B Cap Cases
On July 27, 2023, the U.S. Citizenship and Immigration Services (USCIS) made a significant announcement, stating that it will conduct a second random selection from the pool of previously submitted FY 2024 H-1B cap registrations. This decision was necessitated by the agency’s determination that additional selections were required to meet the FY 2024 numerical allocations. USCIS plans to select additional registrations from the previously submitted electronic registrations using its random selection process, and will provide updates once this second selection process is completed.
The announcement of a second lottery selection seems to be related to wide-spread concerns about the potential for multiple employers submitting H-1B registrations on behalf of a single beneficiary. The record-breaking 780,000 H-1B lottery registrations this year, with a strikingly low selection rate of approximately 14.6%, was largely due to duplicate applications. The USCIS reported that more than half the registrations, nearly 409,000, were for potential beneficiaries whose names were submitted multiple times. The increase in registrations this year from individuals whose names were submitted only once was much smaller — 350,000, up from 309,000 last year. While not explicitly illegal, this practice has raised substantial concerns within the USCIS that certain entities may have collaborated to submit multiple registrations for the same beneficiary, in an attempt to manipulate the system and unjustly inflate the chances of a beneficiary’s selection in the lottery. Investigations into these concerns had been initiated by USCIS, resulting in the denial and revocation of certain petitions, as well as its instituting referrals for potential criminal prosecution. The USCIS’s announcements and the media’s reports on this matter appear to have led to the intended “chilling effect” on the number of actual H-1B petitions filed from those that were selected in the initial lottery.
The implementation of a second lottery selection, while offering a glimmer of hope for many U.S. educated professionals, starkly illuminates the inherent flaws of the current H-1B cap registration process, specifically the recently introduced digital lottery process. The lack of any real safeguards within this system led to its foreseeable exploitation. Further, the exceedingly low annual H-1B quota allocation continues to hamper U.S. business and education. Ultimately, to secure an intelligent and truly merit-based immigration system, and to ensure that the U.S. continues to attract top talent globally, the registration process must be redressed, and the annual H-1B cap and the 7% cap on per country green card issuance must be significantly increased.
Quoted in CBC article on Canada’s Successful Tech Strategy in which it Outsmarted the U.S. by Poaching 10,000 STEM H-1B Visa Holders in Less Than 48 Hours
“At the very least, Canadians have brought to light the fact that there are other, smarter countries with better immigration policies that actually value science, technology, engineering and math,” said immigration lawyer Ashwin Sharma of the Sharma Law Office in Jacksonville, Fla.
“Perhaps the U.S. will start doing the same.”
Sharma also acknowledged that the open nature of the Canadian work permit, coupled with the higher salaries generally on offer in U.S. tech industries, may mean that not all applicants are looking to move to Canada on a long-term basis.
“It could be that the H1-B workers are coming over for a short period of time to perhaps kill off some unemployment period of time,” he said.
“It remains to be seen how many will remain in Canada.”
Canada’s Tech Talent Strategy: A Model for Reform in the U.S. Immigration System
In an effort to augment its technological sector, the Canadian government, under the banner of its Tech Talent Strategy, is launching an exclusive open work permit stream for U.S. H-1B specialty occupation visa holders. This initiative, slated to commence on July 16, 2023, promises to offer up to 10,000 of these highly-skilled professionals a flexible work permit to work in Canada, for up to three years. Spouses and dependents of the principal applicants would not be counted towards the 10,000 number, and would also eligible to apply for temporary Canadian resident visas, including work or study permits, as required.
The Tech Talent Strategy, while a significant step forward, still lacks key details and presents certain restrictions. The program is currently set to run for a year or until it hits the ceiling of only 10,000 applications. A noteworthy omission in the Canadian strategy is the non-inclusion of F-1 OPT STEM workers in this initiative. This demographic, a significant number of whom have earned their STEM Master’s degrees from U.S. institutions – could have been a substantial asset to the Canadian tech sector. The integration of these innovative, committed professionals could have presented Canada with the opportunity not only to tap into a significant reservoir of young and motivated individuals but also to potentially secure their lifelong loyalty, as many have been consistently overlooked for H-1B visas due to the fraud-riddled quagmire that the Fiscal Year H-1B Cap lottery process has devolved into, thanks to its ill-conceived “digital” transition under the outgoing Trump Administration.
The unveiling of Canada’s Tech Talent Strategy highlights the shortcomings of the U.S.’s immigration policy, especially regarding the attraction and retention of highly skilled tech professionals. Our own policy continues to be entangled in a web of bureaucratic complexities as well as archaic measures and quotas, leading to insufficient H-1B quota numbers and prolonged green card waiting periods, which disproportionately impact Indian nationals.
Our own purported “merit-based” immigration policy, amounting to a mere 15% of all U.S. green cards issued annually, is woefully inadequate, allocating a meager 2,000 or 2,500 green cards to Indian professionals each year, including their spouses and children under 21. Meanwhile, a staggering backlog of approximately 900,000 other Indian applicants remains in agonizing limbo, condemned to endure a wait that is projected to extend for decades.
These extensive processing times, particularly for the very individuals who make monumental contributions to the U.S. Tech Sector’s triumph, not only repel talent but also serve as an unequivocal testament to a system in dire need of comprehensive reform. The stark disparity between our policy and those implemented by other nations underscores the pressing urgency for immigration reform in the U.S.
(Via AILA.org) Major Settlement Changes How USCIS Adjudicates Work Permits for [H-4 and L-2 ] Nonimmigrant Spouses
Via AILA.org
AILA and its litigation partners entered into a settlement agreement with DHS that provides structural changes for H-4 and L-2 spouses suffering from long delayed processing times for the processing of applications for employment authorization. (Shergill, et al. v. Mayorkas, 11/10/21)
For H-4s:
Within 120 days of the Effective Date, USCIS will amend the receipt notice currently issued to applicants to detail the EAD auto-extension eligibility for those holding H-4 status based on the validity period provided on a Form I-94 in combination with a facially expired EAD and the Form I-797C receipt notice for a timely-filed I-765 EAD renewal application.
For L-2s:
USCIS will issue policy guidance that states that L-2 spouses are employment authorized incident to status and, in cooperation with CBP, change the Form I-94, within 120 days of the Effective Date, to indicate that the bearer is an L-2 spouse so that it can be used as a List C document for Form I-9 purposes.
FOR IMMEDIATE RELEASE
Wednesday, November 10, 2021
Washington, DC – The American Immigration Lawyers Association (AILA) and its litigation partners Wasden Banias and Steven Brown, celebrate the historic settlement with the Department of Homeland Security (DHS) in Shergill, et al. v. Mayorkas, which provides structural changes for nonimmigrant H-4 and L-2 spouses suffering from long delayed processing times for the processing of applications for employment authorization. The litigation successfully achieved the reversal of U.S. Citizenship and Immigration Services (USCIS) policy that prohibited H-4 spouses from benefiting from automatic extension of their employment authorization during the pendency of standalone employment authorization document (EAD) applications. Although this is a giant achievement, the parties’ agreement will further result in a massive change in position for USCIS, which now recognizes that L-2 spouses enjoy automatic work authorization incident to status, meaning these spouses of executive and managers will no longer have to apply for employment authorization prior to working in the United States.
Jesse Bless, AILA Director of Federal Litigation stated, “Today marks a historic change for L-2 spouses who will now enjoy work authorization incident to status. AILA’s membership has long advocated for the correct statutory interpretation and we’re delighted to have reached this agreement, which includes relief for H-4 spouses, through our litigation efforts with Wasden Banias and Steven Brown. It is gratifying that the administration saw that settling the litigation for nonimmigrant spouses was something that should be done, and done quickly.”
Jon Wasden stated, “After years of outreach to the agency, it became clear that litigation was unfortunately necessary. Despite the plain statutory language, USCIS failed to grant employment authorization incident to status for L-2s. The other issue relates to H-4s whose work permits expire prior to their H-4 status; this is a group that always met the regulatory test for automatic extension of EADs, but the agency previously prohibited them from that benefit and forced them to wait for reauthorization. People were suffering. They were losing their high-paying jobs for absolutely no legitimate reason causing harm to them and U.S. businesses. So, while I’m glad the agency finally followed the law, it is frankly frustrating that an easily fixable issue took this long to address.”
See this op-ed from Forbes for more information
Read the Decision: Shergill, et al. v. Mayorkas, 11/10/21 [PDF]
Indian Nationals File Lawsuit Challenging Presidential Proclamation 10052’s H-1B/H-4 Visa Ban
A group of 174 Indian nationals, including seven minor children, filed a lawsuit in the U.S. District Court for the District of Columbia challenging Presidential Proclamation 10052, which took effect on June 24, 2020, and temporarily suspends entry of certain H, J, and L nonimmigrants into the United States. The plaintiffs seek an order declaring Proclamation 10052 to be unlawful, compelling DHS to issue decisions on their pending requests for H-1B and H-4 visas, and enjoining DHS from refusing entry into the United States based on the proclamation, among other relief.
(Panda, et al. v. Wolf, et al., 7/14/20)
Ashwin Sharma quoted by the Times of India on USCIS’s latest Policy Memo, a Major Victory for H-1B Consulting Firms/Employees
I was quoted today in a Times of India article on USCIS’s issuance of a game-changing new policy memorandum yesterday in which it rescinds and replaces two previous policy memoranda (2010, 2018) regarding the adjudication of H-1B petitions for professionals assigned to third-party job sites.
Among its other directives, the memo instructs USCIS officers to stop requiring H-1B employers to provide job itineraries for H-1B candidates as well as private contractual documentation between third-party client/vendor companies. The memo advises USCIS officers to refrain from issuing ridiculously short approval durations in these cases (as little as 1-2 months). The memo also makes it easier for an H-1B employer to demonstrate an eligible Employer-Employee relationship with its H-1B employee.
In summary: though USCIS still maintains arrows in its quiver to target the H-1B program, the new guidance represents extremely positive news for H-1B stakeholders, particularly those within the consulting industry. The policy guidance is effective immediately, and applies to any pending or new requests for H-1B classification, including motions on and appeals of revocations and denials of H-1B classification.
Ashwin Sharma Quoted by the Times of India Regarding Issues Faced by Laid-Off H-1B Workers
“Sharma also said H-1B employees face another challenge. The inability of an employee to continue working and retaining insurance benefits because of USCIS’s historic delays in adjudicating extensions (again, for the H-1B in particular, the present unavailability of the premium processing option leaves H-1B employers and employees in a very difficult predicament). “The USCIS’s delay can severely impact an H-1B/EAD (employment authorisation document), employee’s ability to maintain their employment and associated insurance benefits by placing them in a gray area – they may be lawful to remain in the USA during this time, but they cannot work until USCIS approves their H-1B or EAD in these cases,” he said.”
Ashwin Sharma quoted in the Times of India re: the President’s Immigration Suspension and the possible future impact to Nonimmigrant visas such as the H-1B
“Ashwin Sharma, Jacksonville-based immigration attorney, told TOI, “At present the proclamation has left untouched the vulnerable visas in the non-immigrant categories. However, section 6 of the proclamation is deeply concerning as it leaves the door open to a future attack on the H-1B and other work visas.”
Sharma hopes that the President has no further plans to attack the H-1B and other non-immigrant visas under the guise of ‘protecting the American worker’. He wondered whether the proclamation is a subtle and first test of the waters. According to him, US will need its skills gap filled by H-1B and other professional workers in the long recovery from the ravages of Covid-19.”
Reminder: Effective today, March 20, 2020, USCIS will not accept any new requests for Premium Processing
Via USCIS.gov
U.S. Citizenship and Immigration Services today announced the immediate and temporary suspension of premium processing service for all Form I-129 and I-140 petitions until further notice due to Coronavirus Disease 2019 (COVID-19).
Effective today, March 20, 2020, USCIS will not accept any new requests for premium processing. USCIS will process any petition with a previously accepted Form I-907, Request for Premium Processing Service, in accordance with the premium processing service criteria. However, we will not be able to send notices using pre-paid envelopes. We will only send batch-printed notices. Petitioners who have already filed a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Workers, using the premium processing service and who receive no agency action on their case within the 15-calendar-day period will receive a refund, consistent with 8 CFR 103.7(e). We will notify the public with a confirmed date for resuming premium processing.
USCIS will reject the I-907 and return the $1,440 filing fee for all petitions requesting premium processing that were mailed before March 20 but not yet accepted.
This temporary suspension includes petitions filed for the following categories:
- I-129: E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.
- I-140: EB-1, EB-2 and EB-3.
This includes new premium processing requests for all H-1B petitions, including H-1B cap-subject petitions for fiscal year 2021, petitions from previous fiscal years, and all H-1B petitions that are exempt from the cap. USCIS previously announced the temporary suspension of premium processing for FY 2021 cap-subject petitions and tentative dates for resumption of premium processing service. This announcement expands upon and supersedes the previous announcement.
For current Form I-129 and I-140 processing times, visit the Check Case Processing Times page and the H-1B page on the USCIS website.
The U.S. Immigration Law Blog by Ashwin Sharma 
Immigration Update: H-1B & H-4 Visa Processing Delays and New Social Media Vetting Standards
We are monitoring significant scheduling changes for H-1B and H-4 visa appointments, with interviews originally set for mid-December 2025 now being cancelled and moved as far out as April 2026.
These disruptions appear tied to the Department of State’s new mandatory online presence review, effective December 15, 2025, which requires H-1B and H-4 visa applicants at consular posts to set their social media accounts to a public setting.
By way of background, in June 2025, the State Department rolled out a similar framework for F, M, and J students and exchange visitors, and the inclusion of H-1B and H-4 applicants marks the first expansion of that policy. The Department has indicated that this online presence review covers:
The recent announcement does not describe the exact standard Consular Officers will use when reviewing H-1B and H-4 online presence. However, H categories are being folded into the policy already in place for F, M, and J applicants, and several details about that policy were described in media reporting in the spring regarding a June 2025 State Department cable to consular posts.
According to the State Department’s previous cable, Consular Officers are instructed as follows:
If Consular Officers identify information they view as derogatory, they can refuse the application outright or require the applicant to appear for a follow-up interview. Discovery of such content can also trigger additional review to determine whether the foreign national will respect U.S. laws and engage only in activities consistent with their nonimmigrant status.
Media outlets that reportedly reviewed the State Department cable addressing the online presence policy as applied to H-1B and H-4 applicants indicate that the key focus for these categories is whether the applicant has been responsible for, or complicit in, the “censorship or attempted censorship” of U.S. citizens at any point in their employment or personal history.
Employers and affected foreign nationals should expect that H-1B and H-4 visa appointment availability will tighten as consular posts absorb the additional work associated with the online presence review.
The new vetting standards increase the likelihood that some applicants will be flagged for lengthy background checks and additional security review. In practice, this can mean:
H-1B visa applicants facing possible delays should stay in close contact with their employer and immigration counsel. Any foreign national planning international travel, whether they already hold a valid visa or will need to apply for a new one, should review these online presence issues and timing risks carefully before finalizing plans to travel abroad.