Tag Archive for: $100

Cyrus Mehta

Federal Court Strikes Down Trump’s $100,000 H‑1B Fee: INA § 212(f) Is Not a Taxing Power

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By Cyrus Mehta, Damira Zhanatova and Kaitlyn Box

On Monday, June 8, 2026, a Massachusetts federal judge delivered a major decision for employers who rely on the H‑1B program. In State of California et al. v. Markwayne Mullin et al., U.S. District Judge Leo T. Sorokin ruled that President Donald Trump’s $100,000 payment requirement on new H‑1B visas is a tax that Congress never authorized the President to impose. He declared the fee unlawful and vacated it in its entirety.

The lawsuit, brought by 20 Democratic state attorneys general, challenged a September 2025 Proclamation that announced an additional $100,000 “supplemental payment” for each new H‑1B petition, dramatically increasing the cost of sponsoring highly skilled foreign workers. Judge Sorokin rejected the government’s central argument that the President’s broad authority under INA § 212(f) to “impose on the entry of aliens any restrictions he may deem to be appropriate” provided legal support for the payment. The court concluded that Congress did not confer taxing power on the President through the Immigration and Nationality Act. As Judge Sorokin wrote, “The court finds that the policy imposes a tax on H‑1B petitions without the requisite delegation by Congress.”

This district court decision is a major victory for H‑1B employers and a sharp reminder that presidential power under INA § 212(f) has real limits although it has been endorsed by the Supreme Court in Trump v. Hawaii to restrict the entry of nationals of certain countries. The court rejected the Trump Administration’s attempt to use § 212(f) to impose a flat $100,000 “supplemental payment” on every new H‑1B petition. In the court’s view, the payment is a tax, the INA does not clearly delegate taxing authority to the President, the implementing Policy violates the Administrative Procedure Act (APA), and the Policy is therefore vacated nationwide.

The court’s core holding is that § 212(f) is not a blank check to tax H‑1B petitions. The government leaned heavily on the phrase “any restrictions he may deem to be appropriate,” arguing that this language is as broad as the tariff authority the Supreme Court upheld in Algonquin under Section 232 of the Trade Expansion Act. The court, however, relies on the Supreme Court’s more recent Learning Resources decision, which sharply narrows how far Algonquin can be pushed.

In Learning Resources, the Supreme Court contrasted Section 232 with the International Emergency Economic Powers Act (IEEPA). Section 232(b) authorizes the President to “adjust imports” and to “take such action . . . as he deems necessary” to do so, in a statutory setting that explicitly references “duties” and “import restrictions.” That context made it natural to read Section 232 as including tariff authority. IEEPA, by contrast, only allows the President to “regulate” imports, omits the “such action as he deems necessary” language, and contains no mention of duties or tariffs. The Supreme Court therefore refused to treat IEEPA’s general regulatory grant as a delegation of tariff or taxing power.

Applying that same framework to the INA, Judge Sorokin notes that §§ 212(f) and 215(a) let the President suspend or restrict entry and prescribe “reasonable rules, regulations, and orders” and “limitations and exceptions” governing entry, but they never mention duties, taxes, or any other revenue‑raising fees. Even though § 212(f) appears broad in isolation, it lacks the specific, duty‑focused context that justified Algonquin’s limited reading of Section 232. Learning Resources underscores that the Supreme Court has long been reluctant to read extraordinary delegations of Congress’s core powers into ambiguous text, especially where the “power of the purse” is involved. Taxing authority, the Court has said, is “core to Congress,” and Judge Sorokin finds nothing in the INA that clearly hands that power to the President.

In his opinion, he emphasizes that the Supreme Court has “long expressed reluctance to read into ambiguous statutory text extraordinary delegations of Congress’s powers,” and that “separation of powers principles and a practical understanding of legislative intent suggest Congress would not have delegated highly consequential power through ambiguous language.” Those principles, he explains, “apply with particular force where, as here, the purported delegation involves the core congressional power of the purse.” The opinion also notes that the government itself conceded that the taxing power is “core to Congress.” Against that backdrop, Judge Sorokin concludes that these considerations “preclude reading INA §§ 212(f) and 215(a) as delegating Congress’s exclusive power to tax.”

That reasoning closely tracks what we identified in our prior blog as a form of the major questions doctrine at work in the immigration context. Without using the label “major questions,” Judge Sorokin applies the same basic logic. The court treats the imposition of a massive, program‑wide $100,000 charge as a “highly consequential power” that Congress would not have handed to the Executive through vague references to “restrictions” on entry. In his view, a de facto tax of that magnitude – one that would fundamentally reshape the cost structure of a central employment‑based visa category – is a decision of great economic and political significance. In that situation, generalized language about “restrictions” on entry is not enough. When the Executive claims authority to take such a consequential step, courts will look for, and insist on, a clear statement from Congress. The major questions doctrine, discussed at length in Learning Resources, and addressed in our prior blog, has implicitly been acknowledged in this recent decision.  The Supreme Court’s tariffs decision in Learning Resources influenced the court in California v Mullane in finding Trump’s $100,000 fee unlawful, and although this court did not state so explicitly, under the major questions doctrine where executive actions have major economic or political significance there has to be explicit Congressional authorization, and here there was none notwithstanding the broad authority given to the President under INA 212(f) in determining the entry of noncitizens into the US.

The government tried to recast the $100,000 payment as an incident of the President’s immigration or commerce powers, invoking nineteenth‑century state head‑tax cases (Smith v. Turner and Henderson v. Mayor of New York) and Merrion v. Jicarilla Apache Tribe. The court is not persuaded. Smith and Henderson were about state taxes on arriving foreign passengers and the boundary between state and federal power over foreign commerce. They did not suggest that a tax on entry is purely a commerce regulation or that delegating commerce powers to the Executive silently includes taxing authority. Merrion, in turn, addressed the inherent sovereign power of a tribe to tax on its own reservation. Tribal taxing power does not derive from the U.S. Constitution, whereas the President has no inherent authority to raise revenue at all. That power lies exclusively with Congress under Article I, Section 8. In Skinner, the Supreme Court held that Congress must clearly indicate any intent to delegate taxing power to the Executive. The court sees no such clear indication in the INA, so these lines of cases do not rescue the Proclamation.

The government also argued that the $100,000 payment is simply a “restriction on entry” authorized by § 212(f). The court confronts that argument directly. Textually, § 212(f) speaks of “restrictions.” In ordinary usage, a tax is not a “restriction” on entry. It is a fiscal measure. Congress did not say “any tax, penalty, or condition” but instead chose narrower language. Structurally, the government’s reading would leave “no perceivable limits” on presidential power. On that view, the President could demand a percentage of a company’s equity as a condition for obtaining an H‑1B, require a U.S. citizen sponsoring a spouse to surrender half her assets, or even try to impose incarceration as a “condition” on sponsoring a relative. Government counsel conceded at argument that incarceration would collide with other constitutional protections, but that only underscores how far the asserted reading strays from statutory text and congressional intent. The court’s hypotheticals make this part of the opinion particularly valuable for future litigation, because they show in concrete terms why § 212(f) cannot be converted into an all‑purpose tool for extracting economic value from U.S. sponsors or re‑engineering large parts of the immigration system.

Once the court concludes that the $100,000 payment is an unauthorized tax, its APA analysis follows logically. The government tried to insulate the Policy from APA review by describing it as a mere “extension of the President’s action.” The court adopts what is becoming the prevailing rule: agency actions taken to implement a presidential directive are subject to APA review unless the underlying authority has been committed by Congress to the sole discretion of the President. The authority to tax H‑1B petitions was never delegated to the President at all, much less committed to his exclusive discretion, so DHS and State cannot shelter behind the Proclamation.

The court finds that the memoranda, FAQs, updated webpages, revised H-1B fee schedule, and online payment system collectively amount to “final agency action” under Bennett v. Spear. They marked the consummation of the agencies’ decision making and immediately changed the legal obligations of H-1B petitioners by making payment of $100,000 a prerequisite for approval. 

On the APA’s procedural requirements, the court holds that the Policy is a legislative rule adopted without notice‑and‑comment. Because the President lacked statutory authority to tax H‑1Bs, his Proclamation did not itself have the force of law. It was the agency materials that created rights, assigned duties, and imposed obligations. That makes them legislative rules subject to § 553. The court rejects the argument that agencies were compelled to follow the Proclamation: agencies are not obligated to comply with unconstitutional or ultra vires directives, and they cannot use such directives as a shortcut around APA rulemaking. Nor can the foreign‑affairs or good‑cause exceptions save the Policy. The government identified no “definitely undesirable international consequences” that would have flowed from using notice‑and‑comment, and it pointed to no emergency threatening life, property, or public safety that would meet the high bar for good cause. The agencies did not contemporaneously invoke good cause in their documents. The court also refuses to treat the violation as harmless, because notice‑and‑comment might have affected the substance of the policy or forced serious consideration of its impact on state employers and cap‑exempt institutions.

On the substantive side of the APA, the court translates its separation‑of‑powers discussion into an “excess of statutory authority” holding. Agencies literally have no power to act unless Congress has conferred it. No INA provision authorizes DHS or State to impose a $100,000 tax on H‑1B petitions. Section 1356(m) is limited to cost‑recovery adjudication fees, and by the government’s own admission, the Proclamation does not impose a fee to cover costs, does not displace existing fees, and is not collected or used like other adjudication fees. Because §§ 212(f) and 215(a) also do not confer taxing power, there is simply no statutory hook for the Policy. As a result, it is “in excess of statutory jurisdiction, authority, or limitations” under 5 U.S.C. § 706(2)(C).

The court further finds that the Policy is arbitrary and capricious. The agencies offered only thin, high‑level rhetoric about addressing “systemic abuse” of H‑1B visas and protecting American workers, with no reasoned explanation of why a flat $100,000 tax is a rational or tailored response. They failed to identify or assess reliance interests, despite the obvious reality that state schools, hospitals, and universities had built long‑term staffing models around the existing H‑1B cost structure, particularly for cap‑exempt roles. The record shows no consideration of alternatives, such as lower amounts, exemptions or discounts for public or cap‑exempt employers, or less disruptive tools targeted at specific abuses. There is also a stark sector mismatch: the Proclamation’s rationale is aimed at STEM and IT sectors and private tech firms, but the Policy applies equally to human‑services sectors like education and healthcare without any sector‑specific analysis or justification. Finally, the court rejects the argument that agencies cannot be arbitrary when they are merely following a presidential directive. The directive itself was not lawful, and even under a lawful directive, agencies must implement it “to the extent permitted by law,” which includes satisfying APA reasoned‑decisionmaking requirements.

On remedy, the court emphasizes that the APA’s instruction to “set aside” unlawful agency action has long been understood to authorize vacatur. It distinguishes vacatur from injunctions: an injunction is directed at particular parties, while vacatur operates on the rule or policy itself, nullifying the government’s authority to act under it. The court sees no need to limit relief to the plaintiffs and rejects res judicata arguments based on overlapping membership with parties in other cases, noting that mere association membership does not create the kind of privity needed for claim preclusion. It issues a declaratory judgment that the Policy is unlawful and vacates it in its entirety, concluding that a separate permanent injunction is unnecessary so long as vacatur is available.

For immigration practitioners and H‑1B employers, the immediate effect is straightforward. Agencies may not condition H‑1B approval on payment of the vacated $100,000 charge. H‑1B costs are again limited to the statutory charges Congress has enacted and to cost‑recovery adjudication fees lawfully set by DHS under § 1356(m). The decision also sends a broader signal about executive power in immigration. It marks a strong limit on § 212(f), making clear that “restrictions on entry” cannot be used to impose taxes, confiscate equity, or extract other unrelated economic concessions from U.S. sponsors. It reinforces a clear‑statement rule for taxation: if the Executive wants to tie immigration benefits to revenue‑raising exactions, it must point to explicit statutory authority and comply with APA procedures and reasoned‑decision making standards.

The ruling also provides a template for litigation strategy. It shows how to challenge executive actions that blur the line between regulating entry and raising revenue, particularly when they are implemented via FAQs, web postings, and internal memoranda rather than formal rulemaking. The court’s hypotheticals and its reliance on Learning Resources offer useful language to resist over‑broad readings of § 212(f) that would erode the INA’s structure.

Practitioners should adjust current H‑1B counseling and filings to reflect that no $100,000 “supplemental payment” may be imposed under this vacated Policy. It is prudent to monitor closely for any new attempts, whether by rulemaking or new proclamation or through the government appealing the decision, to alter the H‑1B fee structure, and to scrutinize those efforts for a clear statutory basis and APA compliance. For clients who hesitated to file H‑1Bs because of the proposed charge, counsel can now revisit those decisions and, where appropriate, move forward under the restored statutory framework, while keeping an eye on potential appeals or replacement policies that might test these same legal boundaries in new ways.

 

Cyrus Mehta

USCIS’s October 20 Clarification Will  Not Make the $100,000 H-1B Fee Disappear

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By Cyrus D. Mehta and Kaitlyn Box*

In a prior blog, we detailed Presidential Proclamation implementing a new $100,000 fee that applies to certain H-1B workers. The initial Proclamation created concern and confusion for H-1B beneficiaries and U.S. employers alike, as it left unclear which types of H-1B petitions would be impacted. On October 20, 2025, USCIS issued guidance stating that “for H-1B petitions subject to the Proclamation, petitioners must submit a copy of the proof of the payment from pay.gov or evidence of an exception from the fee from the Secretary of Homeland Security at the time of filing the H-1B petition. Petitions subject to the $100,000 payment that are filed without evidence of payment or the grant of an exception will be denied.”

USCIS guidance also clarifies that the Proclamation does not apply to “any previously issued and currently valid H-1B visas”,  “any petitions submitted prior to 12:01 a.m. eastern daylight time on September 21, 2025”, and “does not prevent any holder of a current H-1B visa, or any alien beneficiary following petition approval, from traveling in and out of the United States.” Moreover, “[t]he Proclamation also does not apply to a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, that is requesting an amendment, change of status, or extension of stay for an alien inside the United States where the alien is granted such amendment, change, or extension, and a beneficiary of an approved petition “will not be considered to be subject to the payment if he or she subsequently departs the United States and applies for a visa based on the approved petition and/or seeks to reenter the United States on a current H-1B visa.”

Ambiguity remains, however, in which categories of H-1B beneficiaries will be subject to the new fee. For example, even the updated guidance does not address whether the fee would apply if an H-1B amendment or extension petition was filed on behalf of a noncitizen who was on a brief trip outside the U.S. To ensure that they are exempt from the Proclamation, however, beneficiaries caught in this situation who have valid visas could simply travel back to the United States before the H-1B petition is filed, a scenario in which the fee is clearly inapplicable. However, individuals who were counted against the H-1B cap because they were terminated by their H-1B employer or have reached the six year maximum in H-1B status and are awaiting I-140 approval may no longer have valid H-1B visas. If new H-1B petitions are filed on behalf of these individuals, it is unclear whether the employer would be required to pay the $100,000 fee. 

The updated guidance also clarifies that  if a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, requests a change of status or amendment or extension of stay and USCIS determines that the alien is ineligible for a change of status or an amendment or extension of stay (e.g., is not in a valid nonimmigrant visa status or if the alien departs the United States prior to adjudication of a change of status request), the Proclamation will apply and the payment must be paid according to the instructions provided by USCIS. This could impact one whose H-1B extension or amendment has been denied. If the employer files a new petition for consular processing so that the beneficiary could travel overseas and apply for an H-1B visa stamp at the US Consulate, this petition would unfortunately be subject to the $100,000 fee. On the other hand, if a motion to reopen or reconsideration is filed and the case gets successfully reopened, the employer can avoid the $100,000 fee. Of course, there is a lot of uncertainty with a motion to reopen and reconsider with respect to the time it will take and the outcome. If the motion to reopen or reconsider fails, the H-1B worker might also have accrued more than 6 months of unlawful presence and would face the 3 or 10 year bar to reentry. 

USCIS’ updated guidance also does not indicate whether the fee applies to H-1B1 visas for Chilean and Singaporean nationals, although the U.S. Embassy of Singapore stated in a Facebook post on October 29, 2025 that the Proclamation “does not apply to the H-1B1 visa for Singaporean citizens. There is no change to the H-1B1 process at this time.”

Even if the scope of the Proclamation has been clarified since its promulgation apply to a narrower set of H-1B beneficiaries than initially appeared to be impacted, the new fee will nonetheless have a devastating impact on U.S. companies who rely on H-1B workers. It is clear that the fee will apply to new H-1B petitions filed on behalf of candidates selected in next year’s H-1B cap. However, if such candidates are in the US in a status such as F-1, and get selected under the H-1B lottery, they should not be subject to the $100,000 fee.  On the other hand, if such prospective candidates enter the US in a nonimmigrant status to try their luck at changing status to H-1B in the next March 2026 lottery to avoid the $100,00 fee, the USCIS could potentially still use its discretion in denying the change of status. Worse still, the prospective candidate would be subject to expeditious removal at the port of entry. 

 Given how unaffordable this fee will be for many, it is anticipated that a number of U.S. employers will be forced to stop filing new H-1B petitions altogether. Companies like Cognizant, Tata Consultancy Services, and Walmart, which traditionally employed large numbers of H-1B workers have already signaled that they will limit the number of H-1B petitions that they file going forward. Even cap exempt employers such as universities and non-profits affiliated to universities or non-profit research organizations will be subject to the $100,000 fee if the candidate cannot fall under any of the exceptions set forth in the October 2, 2025 clarification. 

After the October 20, 2025 clarification, many in the immigration community expressed relief that this guidance had blunted the impact of the Proclamation, but the clarification does not really address the fact that the Proclamation will continue to apply to many H-1B cases with a few exceptions. As we have stated in our prior blog, this Proclamation has been issued in violation of the INA, and there are two court challenges already to the Proclamation, and we hope that the courts will strike it down very soon. 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Trump’s Reshaping of the H-1B Visa in the Manner He Chooses is Further Demonstration of Authoritarianism

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By Cyrus D. Mehta and Kaitlyn Box*

On September 24, 2025, the Department of Homeland Security (DHS) promulgated a new proposed rule to introduce a “weighted selection” system for H-1B cap-subject petitions. The new proposed system is aimed at favoring the “allocation of H-1B visas to higher skilled and higher paid aliens”.

Pursuant to the proposed rule, each H-1B lottery registration would be categorized based on the Department of Labor (DOL)’s Occupational Employment and Wage Statistics (OEWS) wage levels and entered into the lottery accordingly:

  • Wage Level IV entries would be added to the selection pool four times
  • Wage Level III, three times
  • Wage Level II, twice
  • Wage Level I, once

The proposed rule makes clear that “each unique beneficiary would only be counted once toward the numerical allocation projections, regardless of how many registrations were submitted for that beneficiary or how many times the beneficiary is entered in the selection pool.”

The system outlined in the proposed rule would have a devastating impact on U.S. employers and H-1B beneficiaries alike. Wage levels for some industries are much higher than others, so U.S. employers who are unable to pay a level IV wage for a Software Developer (SOC Code 15-1252), for example, which exceeds $100,000 in many geographic areas, will have a lower chance of candidates being selected in the H-1B lottery. Candidates in fields that tend to be lower-paying, such as Acupuncturists (29-1291.00) will have a greater chance of being selected, as employers may be better positioned to offer a Level IV wage if it is still relatively modest. This measure is also likely to deter U.S. employers from sponsoring new graduates for H-1B employment, as a level I wage is often the one that applies to an entry-level position.

This proposed rule is one of a number of measures aimed at eviscerating the H-1B visa program, together with the new $100,000 fee that applies to certain H-1B workers, detailed in our prior blog. This fee will have the effect of pushing many H-1B workers out of the U.S. labor market. Industries like information technology, which depend heavily on H-1B workers because there is not enough U.S. talent to fill open positions, will be impacted the most severely.

These measures are not only detrimental to the U.S. economy and H-1B workers alike, but are also a further example of the Trump administration’s disregard for  laws enacted by Congress, like his imposition of tariffs, firing of federal employees, including Immigration Judges whose decisions he does not like and taking revenge on former government officials he does not like, as with the indictment of James Comey. Trump has likely overstepped his authority as president by unilaterally imposing the new $100,000 fee, which is arbitrarily high and not authorized by the statute. Although Trump is proposing a rule to skew selections in favor of H-1B candidates who will be paid higher wages, there is nothing in the INA that authorizes weighting H-1B selections based on the amount of the offered wage.

CNN’s Fareed Zakaria  cited the proclamation implementing the $100,000 fee as evidence that the “America is moving down the path of illiberal democracy.” We agree.

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Poking Holes at the Poorly Drafted Proclamation Banning H-1B Workers through a $100,000 Fee

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By Cyrus D. Mehta and Kaitlyn Box*

The Proclamation banning H-1B workers unless a $100,000 fee is paid is so blatantly unlawful that it rewrites parts of the INA. However, a successful challenge to the proclamation – after the Supreme Court upheld Trump’s travel ban for nationals of mainly Muslim countries under INA 221(f) in Trump v. Hawaii – is not a foregone conclusion. This Proclamation is also issued pursuant to INA 221(g).

The Proclamation rehashes much of the objections to the H-1B visa program that have become outdated and seem to cast Indian heritage IT firms in an unfavorable light. H-1B workers are no longer cheap labor and provide great value to US companies, which in turn create more jobs for US workers. H-1B workers are mostly paid six figure salaries. The rules also ensure that H-1B workers are paid the higher of the prevailing or actual wage. A court may not challenge the President’s rationale behind the proclamation, but a court could still evaluate whether the imposition of the $100,000 fee rewrites H-1B law or only supplants it. It  is a complete rewrite of the law, and so a court should be able to distinguish this proclamation from Trump vs Hawaii. The president cannot wholesale re-write laws enacted by Congress, and decide the sort of immigrant he prefers over another based on personal whim and prejudice. Trump is not a King, and if he likes to be King, he should not be given unbridled power to rewrite provisions of the INA that Congress has enacted. 

Otherwise, it makes a mockery of the separation of powers doctrine, which is a defining feature of democracy because it distributes governmental authority among three distinct branches – legislative, executive and judicial.

Previously too when Trump imposed a similar ban, on October 1, 2020, U.S. District Judge Jeffrey S. White issued a preliminary injunction against the Trump administration’s June 2020 proclamation that suspended the entry of foreign nationals on H-1B, L-1, H-2B and most J-1 temporary visas. Judge White ruled the president does not possess a monarch’s power to cast aside immigration laws passed by Congress. The order in NAM v. DHS prevented the State Department and Department of Homeland Security from “engaging in any action that results in the non-processing or non-issuance of applications or petitions for visas in the H, J, and L categories which, but for Proclamation 10052, would be eligible for processing and issuance.” See our prior blogs on challenging Trump’s bans under INA 221(f) here and here, and discussing NAM v. DHS here. 

 USCIS Director Edlow’s memo thankfully tamps down the widespread panic that the initial Proclamation caused and the $100,000 supplemental fee applies to H-1B petitions filed after 12.01 AM ET on September 21, 2025. The threat of litigation and the opposition from corporate America and universities forced the Trump administration to back off a bit.

However, the Proclamation was poorly drafted and did not state that it would apply to petitions filed on or after September 21, 2025 and lawyers had to do their job to advise clients consistent with the language of the Proclamation. The guidance clearly stated that the fee would apply to H-1B workers outside the US after September 21, 2025. Therefore, it was disingenuous of the White House to falsely accuse “corporate lawyers and others with agendas” for “creating a lot of FAKE NEWS around President Trump’s H-1B Proclamation”

Edlow’s memo does not make things clear at all. We do not know whether the Proclamation would apply to H-1B extensions filed after September 21, 2025 for workers who are outside the US and will apply for H-1B visa stamps assuming they were the subject of approved H-1B petitions filed before September 21, 2025 whether by the same or a different employer.

The Edlow memo also does nothing for the future of the H-1B program. Cap exempt employers who are universities and nonprofits affiliated with universities or research institutions will be hit with the $100,000 fee when they file a new petition. After next year’s H-1B lottery selections in 2026, employers will have to also pay the $100,000 fee for any new petition. It will be  impossible  for employers to hire talented students from US universities. 

The White House subsequently issued an H-1B FAQ , but it again creates more confusion. It states that the Proclamation “requires a $100,000 payment to accompany 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, because it is based on INA 212(f) which addresses the “entry of any aliens” or of “any class of aliens”, should not apply to someone inside the US who is seeking an extension of stay, and it should also not apply to a change of status to H-1B in the US, even if the most recent White House guidance, which again is as poorly drafted as the prior clarifications and the Proclamation itself, does not state it. For example, if one is currently in F-1 status, the employer applies for this person in the 2026 H-1B lottery,  the case gets selected and the new petition is filed as a change of status from F-1 to H-1B while the person has  always been in the US, the $100,000 fee under the Proclamation should arguably not apply.  The same would hold true if a non-profit cap exempt employer files a new H-1B petition after September 21, 2025 and requests the change of status for a beneficiary from F-1 to H-1B status. 

 The imposition of this fee will in effect kill the H-1B visa program and will no longer attract foreign talent to the shores of the US. US companies instead will also flee the US so that they can hire this talent overseas. Trump is in effect has killed the goose that laid the golden eggs by imposing this atrocious fee.

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.