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IMMIGRATION OCTOBER 03, 2025 | The Indian Eye 34

Poking Holes at the Poorly Drafted Proclamation

Banning H-1B Workers through a $100,000 Fee

he Proclamation ban- prevailing or actual wage. executive and judicial. ter September 21, 2025 and ern daylight time on Septem-
ning H-1B workers un- A court may not challenge Previously too when lawyers had to do their job to ber 21, 2025. This includes the
Tless a $100,000 fee is the President’s rationale be- Trump imposed a similar ban, advise clients consistent with 2026 lottery, and any other
paid is so blatantly unlawful hind the proclamation, but on October 1, 2020, U.S. Dis- the language of the Procla- H-1B petitions submitted af-
that it rewrites parts of the a court could still evaluate trict Judge Jeffrey S. White is- mation. The guidance clearly ter 12:01 a.m. eastern daylight
INA. However, a successful whether the imposition of the sued a preliminary injunction stated that the fee would ap- time on September 21, 2025.”
challenge to the proclamation $100,000 fee rewrites H-1B against the Trump adminis- ply to H-1B workers outside The Proclamation, because it
– after the Supreme Court law or only supplants it. It is tration’s June 2020 proclama- the US after September 21, is based on INA 212(f) which
upheld Trump’s travel ban for a complete rewrite of the law, tion that suspended the entry 2025. Therefore, it was disin- addresses the “entry of any
nationals of mainly Muslim and so a court should be able of foreign nationals on H-1B, genuous of the White House aliens” or of “any class of
countries under INA 221(f) to distinguish this proclama- L-1, H-2B and most J-1 tem- to falsely accuse “corporate aliens”, should not apply to
in Trump v. Hawaii – is not tion from Trump vs Hawaii. porary visas. Judge White lawyers and others with agen- someone inside the US who is
a foregone conclusion. This The president cannot whole- ruled the president does not das” for “creating a lot of seeking an extension of stay,
Proclamation is also issued sale re-write laws enacted by possess a monarch’s power to FAKE NEWS around Pres- and it should also not apply to
pursuant to INA 221(g). Congress, and decide the sort cast aside immigration laws ident Trump’s H-1B Procla- a change of status to H-1B in
The Proclamation re- of immigrant he prefers over passed by Congress. The or- mation” the US, even if the most re-
hashes much of the objections another based on personal der in NAM v. DHS prevent- Edlow’s memo does not cent White House guidance,
to the H-1B visa program that whim and prejudice. Trump is ed the State Department and make things clear at all. We which again is as poorly draft-
have become outdated and not a King, and if he likes to Department of Homeland do not know whether the ed as the prior clarifications
seem to cast Indian heritage be King, he should not be giv- Security from “engaging in Proclamation would apply to and the Proclamation itself,
IT firms in an unfavorable en unbridled power to rewrite any action that results in the H-1B extensions filed after does not state it. For example,
light. H-1B workers are no provisions of the INA that non-processing or non-issu- September 21, 2025 for work- if one is currently in F-1 sta-
longer cheap labor and pro- Congress has enacted. ance of applications or peti- ers who are outside the US tus, the employer applies for
vide great value to US com- Otherwise, it makes a tions for visas in the H, J, and and will apply for H-1B visa this person in the 2026 H-1B
panies, which in turn create mockery of the separation of L categories which, but for stamps assuming they were lottery, the case gets selected
more jobs for US workers. powers doctrine, which is a Proclamation 10052, would the subject of approved H-1B and the new petition is filed
H-1B workers are mostly paid defining feature of democracy be eligible for processing petitions filed before Septem- as a change of status from F-1
six figure salaries. The rules because it distributes govern- and issuance.” See our prior ber 21, 2025 whether by the to H-1B while the person has
also ensure that H-1B work- mental authority among three blogs on challenging Trump’s same or a different employer. always been in the US, the
ers are paid the higher of the distinct branches – legislative, bans under INA 221(f) here The Edlow memo also $100,000 fee under the Proc-
and here, and discussing does nothing for the future lamation should arguably
NAM v. DHS here. of the H-1B program. Cap not apply. The same would
USCIS Director exempt employers who are hold true if a non-profit cap
Edlow’s memo thank- universities and nonprofits af- exempt employer files a new
fully tamps down the filiated with universities or re- H-1B petition after Septem-
widespread panic that search institutions will be hit ber 21, 2025 and requests the
the initial Proclamation with the $100,000 fee when change of status for a benefi-
caused and the $100,000 they file a new petition. After ciary from F-1 to H-1B status.
supplemental fee ap- next year’s H-1B lottery selec- The imposition of this
plies to H-1B petitions tions in 2026, employers will fee will in effect kill the H-1B
filed after 12.01 AM ET have to also pay the $100,000 visa program and will no lon-
on September 21, 2025. fee for any new petition. It will ger attract foreign talent to
The threat of litigation be impossible for employers the shores of the US. US com-
and the opposition from to hire talented students from panies instead will also flee
corporate America and US universities. the US so that they can hire
universities forced the The White House subse- this talent overseas. Trump is
Trump administration to quently issued an H-1B FAQ , in effect has killed the goose
back off a bit. but it again creates more con- that laid the golden eggs by
However, the Proc- fusion. It states that the Proc- imposing this atrocious fee.
lamation was poorly lamation “requires a $100,000 *Kaitlyn Box is a Partner at
drafted and did not state payment to accompany any
that it would apply to new H-1B visa petitions sub- Cyrus D. Mehta & Partners
petitions filed on or af- mitted after 12:01 a.m. east- PLLC.
___________________________________________________________________________________________________________________________________
m of Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of
Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation
CYRUS D. MEHTA & PARTNERS PLLC Task Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics Committee; special counsel on immigration
matters to the Departmental Disciplinary Committee, Appellate Division, First Department, New York; member
of the ABA Commission on Immigration; board member of Volunteers for Legal Services and board member of

New York Immigration Coalition. Mr. Mehta is the former chair of the Board of Trustees of the American Immi-

  gration Council and former chair of the Committee on Immigration and Nationality Law of the New York City
   
­ Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on ethics,
€
‚   and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration
and Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of
immigration law and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing
pro bono representation in the immigration field. He has also received two AILA Presidential Commendations in
2010 and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by Who’s Who
2 6th Floor Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers Global 2019 in

    immigration law, among other rankings.

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