In the past week, government officials have issued four directives that would radically transform employment-based immigration to the United States. The actions would restrict immigration options for highly skilled workers, including advanced-degree professionals and STEM graduates, and would expand enforcement of employer compliance provisions. The guidance provided to date does not address important issues regarding the scope of the actions or the implementation of the proposals. These directives will likely be challenged in federal court on the grounds of noncompliance with rulemaking requirements under the Administrative Procedure Act and interference with Congress’ plenary power to regulate immigration.
The September H-1B Actions
On September 19, 2025, the government issued presidential proclamation 10973, imposing restrictions on the entry of certain nonimmigrant workers. This directive increased the filing fees for certain H-1B nonimmigrant visa petitions by $100,000, effectively excluding startups, nonprofits, and small businesses from participation in the H-1B program. The $100,000 H-1B fee would apply only to petitions filed after September 21, 2025, and exempts current H-1B visa holders. The H-1B proclamation also provides for a discretionary national interest exemption.
On the same day, the U.S. Department of Labor announced the establishment of Project Firewall, a new enforcement initiative that provides for additional H-1B enforcement capacity. This initiative would supplement existing enforcement authority exercised by U.S. Department of Homeland Security agencies, including the USCIS Fraud Detection and National Security and ICE Homeland Security Investigations offices.
The U.S. Department of Homeland Security then published a proposed rule in the Federal Register on September 24, 2025, seeking further revisions to H-1B visa procedures. The proposed rule would replace the current random lottery registration with a weighted selection process. The new process prioritizes registrations based on wage levels, which will significantly reduce visa options for young professionals and recent university graduates.
The Gold Card Proposal
In addition to these H-1B measures, the President issued executive order 14351, titled “The Gold Card,” on September 19, 2025, establishing a Gold Card visa program intended to facilitate “expedited immigration for aliens who make significant financial gifts to the United States.” The Gold Card program would restructure the permanent employment-based (EB) visa categories for Lawful Permanent Residence or green card status. A “gift” of $1 million to the U.S. Department of Commerce would be treated as evidence of eligibility under the EB-1 Extraordinary Ability and EB-2 National Interest categories. The fee payments would not be used to cover administrative costs. Instead, they would be paid to the general fund “to promote commerce and American industry.”
The Gold Card proposal does not expand the current cap on EB-1 Extraordinary Ability and EB-2 National Interest visas. Individuals who can pay $1 million would compete with or potentially displace those who can establish extraordinary ability in their field and those who can demonstrate that their work benefits the U.S. national interest.
Unresolved Issues
The guidance issued by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and the U.S. State Department is incomplete. Many issues remain unresolved, including:
- Are cap-exempt petitioners, including nonprofits and universities, required to pay the $100,000 fee?
- Are petitions for H-1B beneficiaries who seek to change employers subject to the $100,000 fee?
- Are petitions for individuals who are present in the United States in another lawful status, such as F-1 students and H-4 dependents, subject to the $100,000 fee?
- On what basis may petitioners request a national interest exemption to the $100,000 fee, and what is the procedure for making this request?
- What is the mechanism for fee payment?
- Is the executive branch authorized to levy fees that are not related to administrative processing costs?
Best Practices
Further guidance and clarification regarding the scope of the September directives is expected. We can also expect the government to propose additional visa eligibility restrictions and enforcement measures. While legal challenges may enjoin implementation of the proposed changes, employers can take measures to prepare for new requirements.
- Identify current and prospective H-1B employees to determine whether they are impacted by the proposals.
- Determine the expected need for H-1B employees and review other nonimmigrant visa options.
- Identify employees who will require sponsorship for permanent resident status in an EB-1 Extraordinary Ability or EB-2 National Interest category to expedite filing under the current structure.
- Review I-9 Employment Verification policies and conduct an internal I-9 audit.
- Review compliance with H-1B Public Access File requirements.
