Trump Administration and H-1BS — $100,000 Fee and Investigations of Labor Condition Applications

Takeaways

• Employers face a new $100,000 fee on certain H-1B applications.
• The Department of Labor has launched “Project Firewall” to investigate compliance with Labor Condition Applications.
• These moves signal heightened scrutiny of the H-1B program and potential changes to next year’s lottery process.

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The Trump Administration has made two announcements in the past few days that will have a significant impact on H-1B employers and workers.

On Friday, September 19, 2025, it released a Presidential Proclamation requiring an additional fee of $100,000 for H-1B applications. Later-issued guidance clarified that this proclamation only applies to “new” applications and does not affect current H-1B visa holders, who can continue to travel in and out of the U.S. on their unexpired H-1B visas.

While there remains some confusion on what is meant by a “new” application, it is clear that it will affect applications for those selected in the H-1B lottery next year.

In addition, there are questions whether this policy applies to those applying for H-1B visas at U.S. consulates abroad, even if the USCIS approved their application before the policy went into effect on September 21, 2025. We have seen three recent reports on this from three different U.S. consulates: two in which the visa was issued without the fee, and one in which the consulate held the person’s passport while they waited for clarification on whether it was required.

The Proclamation also provides grounds for a waiver of this fee if the employment of the H-1B worker is determined to be in the national interest and does not present a security threat. However, it did not indicate what factors would be applied in making this determination. While there are grounds for national interest waivers as a substitute for labor certification in the green card application process, no guidance has yet been issued on whether these, or other, factors will be used in the H-1B / $100,000 fee context.

This Proclamation also seems to be a continuation of the Trump Administration’s efforts to address what it sees as abuse in this visa program. It has reportedly proposed altering the way in which H-1B lottery entries are selected in the annual lottery held each March by using salary levels as a predominant factor. While a proposed rule has been cleared by the Office of Management and Budget, it has not yet been published in the Federal Register as part of the adoption process, so few details are currently available.

The same day the Proclamation was issued, the U.S. Department of Labor (DOL) announced it has launched “Project Firewall” under which it will conduct investigations of employers to “… safeguard the rights, wages and job opportunities of highly-skilled American workers by ensuring employers prioritize qualified Americans when hiring workers and holding employers accountable if they abuse the H-1B visa process.”

The DOL’s announcement also states it will “… share information and coordinate with relevant government agencies, as permitted by law, to combat discrimination against American workers and ensure the law is properly enforced by leveraging the full force of the federal government.”

While no details have been released, it is unclear how this will ensure “employers prioritize qualified Americans when hiring workers” since there is no labor market test required for H-1Bs. It is very likely these will focus on compliance with Labor Condition Application (LCA) and associated prevailing wage/wage and hour requirements.

We at Dykema will continue to keep you informed as more information becomes available on these two significant announcements.

If you have any questions about the information in this alert, please contact Jim Aldrich, James Prappas, or your Dykema relationship attorney.