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.
The U.S. Immigration Law Blog by Ashwin Sharma 
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.