On September 19, 2025, President Trump signed an executive order that sent shockwaves through corporate HR departments nationwide: a proposed one-time $100,000 fee for certain new H-1B visa petitions.

If you’re an HR leader or legal ops professional managing foreign national employees, you’ve probably been fielding questions from leadership, employees, and stakeholders about what this actually means for your workforce strategy.

The good news? This rule doesn’t affect most H-1B workers currently in the U.S. But the details matter—and understanding the nuances could save your company from costly mistakes or unnecessary panic.

Hi, I’m Robert Nadalin, a board-certified Specialist in Immigration and Nationality Law and Managing Attorney at Nadalin Law. With over 25 years helping companies navigate corporate immigration challenges, I’ve seen how quickly policy shifts can create confusion and compliance risks. 

In this update, I’m breaking down who the $100K H-1B fee actually affects, the current litigation status, and what HR teams should monitor to protect their workforce and stay audit-ready.

What Is the $100K H-1B Executive Order?

The executive order targets foreign nationals outside the U.S. seeking to enter on an H-1B visa for the first time. The proposed $100,000 fee would apply before they can physically enter the country.

But here’s where it gets important: over the six weeks following the order, federal agencies issued clarifications that significantly narrowed the scope of who this fee actually affects.

Who the Fee Does NOT Apply To

The $100K fee does not apply if:

✔ Your H-1B petition was filed (not approved, just filed) before September 19, 2025

✔ You’re lawfully present in the U.S. and applying for a change of status or extension

✔ You already hold H-1B status and are renewing in spring 2026 or beyond

✔ You previously held H-1B status and are extending or transferring to a new employer

Translation for HR teams: If your employee is already in the U.S. with valid status—whether H-1B, F-1 student transitioning to H-1B, or any other lawful status—this rule should not affect them.

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Who COULD Be Impacted by the $100K Fee?

The rule potentially applies to two groups:

1. H-1B Cap Lottery Winners Outside the U.S.

If an employee:

  • Is selected in the H-1B lottery
  • Is physically outside the United States
  • Has never held H-1B status before
  • Needs to obtain their first visa stamp at a U.S. consulate

They could be subject to the $100,000 fee—assuming the rule survives litigation and remains in place.

2. Consular Notification Cases (Gray Area)

Consular notification is a legal strategy used to resolve minor status violations. For example:

  • An employee was laid off a year ago
  • Took 12 months to find new employment
  • Lost lawful status due to prolonged time off payroll
  • Has a weak case for an exception to regain status in the U.S.

In these cases, the standard approach is to:

  • Obtain an approved H-1B petition
  • Have the employee travel abroad
  • Process the visa stamp at a consulate
  • Re-enter the U.S. with clean status

Current uncertainty: We don’t yet have official clarification on whether the $100K fee applies to consular notification cases. The common thread appears to be that the rule targets people with no current status.

 

The Litigation: What’s Happening in Court?

The executive order is currently being challenged in federal court in Global Nurse Force et al. v. Trump, among other potential cases.

What Could Happen?

The court could:

  • ✔ Uphold the rule in full
  • ✔ Strike down parts of the rule
  • ✔ Completely invalidate the order

If the rule is negated, H-1B processing would revert to the same procedures and fee structure that existed before September 2025.

Timeline

I anticipate clarification in the coming months, ideally before the next H-1B cap season kicks off in spring 2026. For now, HR teams should monitor updates closely and avoid making premature workforce decisions based on incomplete information.

 

The Real Concern: DOL’s Project Firewall and Increased Enforcement

While the $100K fee grabbed headlines, it may have been a distraction from more substantive enforcement actions already underway.

What Is Project Firewall?

The Department of Labor (DOL) has signaled more aggressive enforcement targeting employers who fail to file required amendments when H-1B employees:

  • Move to a new worksite
  • Change job duties significantly
  • Transfer to a different location not covered by the original Labor Condition Application (LCA)

Why this matters: Even compliant employers can get swept up if they’re not meticulous about worksite documentation and LCA amendments.

It’s frustrating for my clients who work hard to stay in compliance when others take shortcuts. If DOL is cracking down on those who aren’t making any attempt to follow the rules, that’s a good thing. But enforcement can be unpredictable—and sometimes the government makes pronouncements and nothing happens. We’ll see.

Who’s at Risk?

DOL enforcement targets could include:

  • Large-scale sponsors: Companies sponsoring thousands of H-1B workers—especially if layoffs are happening concurrently (even in different departments)
  • High-profile employers: Enforcement actions against major companies make headlines and send a strong message
  • Random audits: Sometimes it’s simply whoever the government happens to investigate

 

What HR Leaders Should Do Right Now

Even with litigation pending, there are proactive steps you can take today to minimize risk and ensure your team is audit-ready.

1. Audit Your Public Access Files (PAFs)

Every H-1B employee must have a Public Access File. Ensure:

  • ✔ One PAF exists for each H-1B worker
  • ✔ Files are current and complete
  • ✔ All required documents are included (LCA, wage info, etc.)

2. Verify H-1B Worksite Compliance

Cross-check that:

✔ Employee physical work locations match the LCA on file

✔ Remote work arrangements are properly documented

✔ Any worksite changes triggered the appropriate LCA amendments

3. Review Upcoming H-1B Renewals

If you have H-1B renewals coming up in 2026:

✔ Confirm eligibility for extension

✔ Ensure employees maintain lawful status

✔ Plan timelines to avoid gaps

4. Monitor Consular Processing Plans

For employees planning international travel or consular visa stamping:

✔ Understand current guidance on the $100K fee

✔ Consult immigration counsel before booking travel

✔ Prepare for potential interview complications or delays

5. Stay Informed on University and Non-Profit Exemptions

H-1B cap exemptions exist for universities and certain non-profit research organizations. If you operate in this space:

✔ Ensure your exemption status is properly documented

✔ Watch for increased scrutiny or audits of cap-exempt employers

Contact Nadalin Law to schedule a consultation or learn more →

 

Why This Isn’t Just an Immigration Issue—It’s a Business Risk

For HR and legal ops teams, immigration compliance isn’t a back-office function. It’s a business-critical lever that directly impacts:

  • Talent acquisition: Can you attract and retain international talent?
  • Project timelines: Will visa delays stall critical hires?
  • Compliance risk: Are you exposed to DOL audits or penalties?
  • Employee morale: Are your foreign national employees feeling uncertain or unsupported?

A single misstep—whether a missed LCA amendment or a poorly prepped consular interview—can cascade into operational disruption, financial penalties, and reputational damage.

 

The Nadalin Law Difference: High-Touch Counsel When It Matters Most

Most large immigration providers operate like ticketing systems. Cases move through queues, but nuanced questions get sidelined. That model works for routine filings—but it falls apart when:

  • Leadership asks, “Should we move forward with this hire?”
  • An employee’s travel plans collide with visa stamp uncertainty
  • DOL announces an audit and you need answers today

My approach is different: attorney-led, high-touch, and built around the real-world pressures HR teams face. My clients don’t just get filings—they get a trusted partner who picks up the phone, answers the hard questions, and plans ahead.

Introducing Nadalin On-Call+

When urgent, one-off immigration questions arise, large providers often won’t help. On-Call+ gives HR leaders direct access to me and my senior counsel—no ticketing systems, no runarounds—so you can resolve issues quickly and keep your workforce moving forward.

Learn more about Nadalin On-Call+ →

 

Frequently Asked Questions (FAQ)

1. Does the $100K H-1B fee apply to employees already working in the U.S.?

No. If your employee is lawfully present in the U.S. and applying for an H-1B extension or change of status, the fee does not apply.

2. What if my employee won the H-1B lottery but is outside the U.S.?

If they’ve never held H-1B status and need to obtain their first visa stamp abroad, they could be subject to the $100K fee—assuming the rule survives litigation.

3. When will we know if the $100K fee rule is upheld or struck down?

I expect clarification in the coming months, ideally before the next H-1B cap season in spring 2026. Monitor updates from USCIS and consult immigration counsel.

4. What is DOL’s Project Firewall?

Project Firewall signals increased DOL enforcement targeting employers who fail to file required LCA amendments when H-1B employees change worksites or job duties.

5. How can I ensure my company is audit-ready?

Audit your Public Access Files, verify worksite compliance, review upcoming renewals, and engage immigration counsel proactively to minimize risk.

6. Should I delay hiring international talent because of this uncertainty?

Not necessarily. Work with experienced immigration counsel to assess your specific situation, understand exemptions, and develop a risk-mitigation strategy that aligns with your business goals.

7. What if an employee’s status lapsed and we need consular notification?

Consular notification cases remain a gray area. Consult immigration counsel before proceeding—guidance is still pending on whether the $100K fee applies.

 

Final Takeaways

✔ The $100K H-1B fee does not affect most workers currently in the U.S.

✔ Litigation is ongoing—the rule could be upheld, modified, or struck down entirely

✔ DOL enforcement is ramping up—audit your compliance now, not later

✔ Proactive planning beats reactive panic—engage counsel early to avoid costly mistakes

The sky isn’t falling, but the system is watching more closely. If your documents are clean, your facts are accurate, and your employees are prepared, you’ll be fine.

But this isn’t the time to coast.

 

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