With Proclamation 10973 about to expire, President Trump signed an extension on Friday, September 18. The new proclamation says the 2025 restrictions have worked but the conditions that prompted them remain. It extends the 2025 Proclamation for 12 more months, until 12:00 a.m. eastern daylight time on September 21, 2027. The $100,000 payment stays on the books, but for now employers still cannot be required to pay it.
Background: The Original Proclamation
President Trump signed “Restriction on Entry of Certain Nonimmigrant Workers” on September 19, 2025. It required a $100,000 payment for new H-1B petitions filed after 12:01 a.m. EDT on September 21, 2025, and was valid for 12 months unless extended. Without an extension, it would have lapsed on September 21, 2026.
The fee has never applied to every H-1B filing. Under USCIS guidance, it covers three situations:
- new petitions filed on or after September 21, 2025, for beneficiaries outside the United States who do not hold a valid H-1B visa;
- petitions filed on or after September 21, 2025 requesting consular notification, port-of-entry notification, or pre-flight inspection;
- change-of-status or extension petitions filed on or after September 21, 2025 where USCIS finds the beneficiary ineligible and approves the case for consular notification instead.
It does not apply to petitions filed before September 21, 2025, or to in-country change-of-status, amendment, or extension petitions that USCIS grants.
The September 21, 2025 filing-date cutoff comes from agency guidance, not from the proclamation. Neither the 2025 nor the 2026 proclamation mentions a filing date. Both are written around entry: the original applied only to people who enter or try to enter the United States after the effective date. The exemption for earlier petitions came from agency statements issued in the first days after the proclamation.
What Changed in the Wording?
The new proclamation repeats nearly all of the original’s operative text. The $100,000 amount, the core restriction, and the national-interest exception are unchanged. A side-by-side reading shows these differences:
| Provision | 2025 Proclamation | 2026 Extension | Impact on stakeholders |
|---|---|---|---|
| Scope (Sec. 3(a)) | Applied to aliens entering after the effective date | Adds that the restriction covers anyone who must seek admission to effectuate petition approval, including via consular notification, port-of-entry notification, pre-flight inspection, or pre-clearance | The consular-notification scope, previously found only in USCIS guidance, is now in the proclamation itself. Approved change-of-status petitions remain outside it. |
| Future renewal (Sec. 3(b)) | Agencies to recommend “an extension or renewal” | Now says “an additional extension or renewal” | Expect another extension request in 2027. |
| State Department role (Sec. 2(b)) | State to approve only “visa petitions” with payment | Changed to “visa applications” | A technical fix, since consulates decide visa applications, not petitions. |
| B-visa guidance | Directed State to prevent B-visa misuse by H-1B beneficiaries | Removed | The instruction was tied to FY2026 start dates and is no longer needed. |
| Rulemaking directives | Ordered DOL and DHS rulemakings | Removed. The preamble instead cites DHS’s weighted-selection final rule of December 29, 2025 and DOL’s March 27, 2026 prevailing-wage proposal | The administration treats these tasks as completed or underway. |
| Findings (preamble) | Statistics on IT outsourcing and STEM unemployment before the policy | New data on the policy’s impact | Updated findings to support the Section 212(f) determination. |
The new preamble includes notable figures:
- The $100,000 payment has been made for more than 700 petitions.
- The largest IT staffing and outsourcing firms cut their combined H-1B registrations from 24,946 to 2,055, a 92 percent drop.
- Consular processing requests fell nearly 97 percent between the FY 2025 and FY 2027 cap seasons.
Section 3(a) creates one open risk for employers. The new effective date is September 21, 2026, and the restriction applies at the point of entry. Consider a beneficiary whose petition was approved without payment while the fee was blocked, and who has not yet entered the United States. That person could be affected if the fee is reinstated before they travel. DHS has said that if the court order is lifted, it still plans to collect the payment. Employers with approved but unused consular-notification petitions should watch this closely.
Can the President Change the Language When Extending a Proclamation?
Yes. Section 212(f) of the INA lets the President suspend entry “for such period as he shall deem necessary” and impose “any restrictions he may deem appropriate.” Nothing requires an extension to repeat the original word for word. Legally, the September 18 document is a new presidential act that restates, extends, and modifies the old one.
Presidents have changed proclamations while they were being litigated before. In June 2020, Proclamation 10052 extended an April 2020 proclamation that suspended entry of certain immigrants and, in the same document, added a new suspension on H-1B, H-2B, J, and L workers. In April 2018, Proclamation 9723 amended the travel-ban Proclamation 9645 to remove Chad while the Supreme Court was reviewing it. The Court still decided Trump v. Hawaii based on the amended version.
The Supreme Court has also addressed this situation directly. In Northeastern Florida Chapter, AGC v. City of Jacksonville (1993), it held that replacing a challenged measure does not end a case if the new version harms the plaintiffs “in the same fundamental way.” The fundamental feature here is unchanged: a $100,000 charge on H-1B petitions for workers who must enter from abroad. The edits should therefore neither end the pending appeals nor escape the courts’ reasoning.
The Litigation: Blocked, Reinstated, Blocked Again
Three main challenges were filed:
- Washington, D.C. The U.S. Chamber of Commerce and the Association of American Universities sued. On December 23, 2025, the district court ruled against them, holding that the proclamation was within the President’s Section 212(f) authority. The case is now on appeal before the D.C. Circuit.
- Massachusetts. On December 12, 2025, a coalition of state attorneys general sued in the U.S. District Court for the District of Massachusetts.
- California. A third case, brought by healthcare organizations, labor unions, and educational institutions, remains pending.
In the Massachusetts case, the court ruled for the states on all claims on June 8, 2026, and vacated the fee policy in full. It held that the fee was not an immigration restriction but a tax, which the President has no power to impose. It also found that the agencies’ rollout violated the Administrative Procedure Act (APA).
That win did not take effect right away. On June 12, the judge refused the government’s request to pause the ruling during the appeal but granted a short administrative pause, so the fee applied again for about six weeks. On July 24, the First Circuit denied the government’s request to keep the ruling on hold. It found that the government had not shown it was likely to win and concluded that the INA does not clearly authorize a $100,000 H-1B fee. DHS said it strongly disagrees but will comply while it considers next steps.
Strictly speaking, the proclamation itself was never “stayed.” The district court vacated the agency policy that carried it out, and the appeals court refused to pause that vacatur.
Why Did the Court Win Mean Little for Indian Beneficiaries?
Even with the fee blocked, hiring workers from abroad has been nearly impossible, especially in India. Indian nationals have accounted for roughly seven in ten approved H-1B petitions in recent years. That means the capacity of U.S. consulates in India largely decides whether hiring from outside the country is workable at all.
That capacity collapsed last winter. On December 15, 2025, the State Department began requiring a review of H-1B and H-4 applicants’ online presence, including public social media accounts, and consulates in India began canceling and rescheduling interviews. By late January, H-1B stamping interviews at all five U.S. consulates in India were effectively booked through 2026, with the next openings in 2027. The end of most third-country “dropbox” renewals pushed even more demand onto Indian posts.
The result is that an employer can file a consular-notification petition without paying $100,000. But a beneficiary in Hyderabad or Mumbai may have no interview slot in which to use the approval.
What Happens When a Proclamation Under Litigation Expires?
Normally, expiration puts the lawsuit at risk. Federal courts can decide only live disputes. If a challenged policy expires on its own terms, the government will usually argue that nothing is left to decide, which lawyers call mootness. If the case is already on appeal, the government can also ask the appeals court to dismiss it as moot and wipe out the lower court’s judgment. That remedy, known as Munsingwear vacatur, would erase the plaintiffs’ win as precedent, not just end the case.
Plaintiffs have two main responses. The first is an exception for disputes that are “capable of repetition, yet evading review.” It covers policies that are too short-lived to be fully litigated but likely to come back. A 12-month proclamation with a built-in renewal clause fits that description closely. The second is money already paid. More than 700 petitioners paid $100,000 each, and the June 8 judgment struck down the policy without addressing refunds. Refund claims can keep a dispute alive after a policy ends.
The extension removes the mootness question for now, and it cuts both ways. By extending the proclamation, the administration keeps its own appeal alive, but it also keeps the plaintiffs’ court win in force. The extension also keeps the fee framework in place, so the fee could take effect quickly if an appeals court rules for the administration.
Precedents: Replacement Versus Extension
Two earlier episodes point in opposite directions.
In 2017, courts blocked the 90-day entry suspension in Executive Order 13780, and the Supreme Court agreed to review it. Before argument, the suspension expired and was replaced by Proclamation 9645. This was a new document, not an extension: it had a different country list, country-specific restrictions, and no fixed end date. In October 2017, the Supreme Court vacated the lower-court rulings as moot, and challengers had to start over against the new proclamation. That second case became Trump v. Hawaii (2018).
The 2020 COVID-era work-visa ban is the closer comparison. On October 1, 2020, a federal court in California barred DHS from applying Proclamation 10052 to the plaintiffs in National Association of Manufacturers v. DHS. On December 31, 2020, Proclamation 10131 extended Proclamations 10014 and 10052 until March 31, 2021, on essentially the same terms. The court order carried over. During the extension, Proclamation 10052 still did not apply to members of the U.S. Chamber, the National Association of Manufacturers, TechNet, and the National Retail Federation.
The lesson is that the form of the new action matters. A replacement with different substance, as in 2017, tends to end the old case. An extension of the same restriction, as in 2020, tends to leave existing court relief in place.
Will the Court Order Cover the New Proclamation?
Almost certainly, at least at first. The September 2026 action follows the 2020 model. It expressly extends the 2025 Proclamation for 12 more months and keeps the limits set by Proclamation 10973. USCIS therefore cannot collect the payment while the court’s ruling stands.
There is one caveat. The courts struck down the agency policy that carried out the proclamation, which is all the states asked for. The APA generally does not reach the President directly. By moving the scope language into the proclamation itself, the government may argue there is less agency action left to challenge under the APA. If USCIS or the State Department issues new implementing guidance, the government could also argue that the new guidance falls outside the June judgment. Either argument would lead to further litigation.
Neither argument touches the courts’ core holding, which is that the charge is a tax Congress never authorized. Courts can review whether a President exceeded his legal authority without relying on the APA, as the Supreme Court did in the tariff case. That holding applies no matter which document puts the fee into effect.
Merits Outlook: Will the $100,000 Fee Stick?
The appeals turn on three questions.
Can courts review the proclamation at all? The government argues that presidential decisions about entry cannot be reviewed. This is its weakest argument. The First Circuit panel found the government unlikely to win on it. At the D.C. Circuit hearing, two of the three judges seemed uneasy with the claim that the proclamation and its implementation are beyond judicial review.
Is the charge a tax or a restriction on entry? This is the central question.
- The government’s side. It relies on the broad deference Trump v. Hawaii gave the President under Section 212(f). If the President can bar these workers entirely, it argues, he can admit them on a costly condition. One D.C. Circuit judge voiced that view at the hearing, noting that the size of the charge weakens the tax argument.
- The challengers’ side. They rely on the Supreme Court’s February 2026 tariff decision, Learning Resources v. Trump, which held that only Congress can impose measures that raise revenue. They compare the fee to alcohol or tobacco taxes meant to discourage use. They note that the tariffs, too, were described as deterring trade rather than raising money.
- Two further problems for the government. Hiring an H-1B worker is legal, so the charge cannot be a penalty. And Congress has already set a detailed H-1B fee structure tied to processing costs, which a presidential $100,000 charge would override.
- A mismatch between the tool and the target. Section 212(f) restricts the entry of people into the country. This charge instead falls on an employer’s petition, which USCIS decides before anyone travels.
Did the rollout follow the APA? The Massachusetts court found that the agencies gave no reasoned explanation and ignored employers’ reliance on the old rules. It also found they ignored alternatives, such as exempting cap-exempt employers. This is the easiest defect for the government to fix, which helps explain why it is also pursuing a separate regulation.
The First Circuit is likely to rule against the fee. Its panel has already found that the government is unlikely to win. That was only a ruling on pausing the decision, not a final one. But reversing course on the merits after that analysis would be unusual. Briefing is expected to finish on October 16, 2026, so a decision could come in early 2027.
The D.C. Circuit is harder to predict. A panel of Judges Wilkins, Katsas, and Childs heard argument on March 9, 2026, and six months later has not ruled. A 2–1 decision either way is plausible. If the D.C. Circuit sides with the government, the two appeals courts will disagree, and the Supreme Court will almost certainly take the case. There, the deference Hawaii gave the President on entry would be weighed against the limits Learning Resources placed on executive revenue measures.
On balance, the challengers have the stronger argument after Learning Resources. It is more likely than not that the $100,000 proclamation fee will not survive in its current form. That outcome is far from certain. Some judges find real force in the argument that a President who can bar entry can also put a price on it. And the current Supreme Court has often sided with the administration on emergency requests. If the government asks the Court to pause the ruling, the fee could return while the appeals continue.
Looking Ahead
Three things will decide the fee’s fate: the First Circuit’s final ruling, the D.C. Circuit’s decision in the Chamber case, and any emergency request to the Supreme Court.
A separate regulation also matters. USCIS has proposed a $103,265 fee on cap-subject H-1B petitions. Because it goes through the formal notice-and-comment process, it avoids the procedural flaw the Massachusetts court found. It has a different problem: the INA ties USCIS fees to the cost of processing, and a six-figure fee is hard to defend as cost recovery. Even if the proclamation falls, a high charge on H-1B petitions may not go away, and more litigation is likely.
For now, petitioners can file without the $100,000 payment. For beneficiaries in India, though, the bigger obstacle is not the fee but getting a visa appointment at all.
This update is for general information only and is not legal advice.
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