President Trump’s H-1B 100 Grand Entry Bar

Summary

• On Friday, President Trump issued a proclamation confirming the deleterious effects of the H-1B temporary visa program on American workers, including that “[t]he H-1B … program … has been deliberately exploited to replace, rather than supplement, American workers with lower-paid, lower-skilled labor.”
• Therefore, President Trump proclaimed that “[p]ursuant to section[] 212(f) … of the Immigration and Nationality Act … the entry into the United States of [H-1B] aliens … is restricted, except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000”.
• Section 212(f) provides that “[w]henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens”. The Supreme Court has concluded that the provision grants an immense amount of discretionary power to a president. Therefore, President Trump’s use of his § 212(f) power as outlined in his Proclamation has a very strong chance of withstanding federal court scrutiny, especially if it reaches the Supreme Court.
• However, the § 212(f) entry bar will seemingly not apply to the majority of H-1B foreign workers, for it is not applicable to those H-1B workers who had already entered the U.S. with some other status before becoming beneficiaries of the H-1B program. And it is likely that many prospective H-1B workers and H-1B employers will be able to game the entry bar in order to avoid the $100,000 fee by making sure that the aliens are already in the U.S. prior to employers filing H-1B petitions on their behalf.
• H-1B employers will seemingly only have to pay the $100,000 fee one time for each H-1B worker, who can generally work for an employer as an H-1B for up to six years. Thus, the fee would have to be set at a level higher than $100,000 in order to equalize the wages of H-1B computer workers with the median national wage for software developers. And the fee would have to be set at a level many multiples of $100,000 in order to equalize the wages of H-1B computer workers with those of relatively highly-paid software developers. These higher fees would not be unreasonable amounts for employers to pay for those H-1B workers who truly are “the best and the brightest”. 

What is the H-1B Program?

Section 101 of the Immigration and Nationality Act (INA) provides that H-1B visas are for aliens “coming temporarily to the [U.S.] to perform services … in a specialty occupation … who meet[] the requirements for the occupation”. Section 214 of the INA defines a specialty occupation as one that requires “theoretical and practical application of a body of highly specialized knowledge” and “attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the [U.S.]”. Section 214 also sets forth the requirements for an H-1B worker, who must 1) have “full state licensure to practice in the occupation, if such licensure is required to practice in the occupation”, 2) “completion of the degree” in the specific specialty, or 3) “experience in the specialty equivalent to the completion of such degree” along with “recognition of expertise in the specialty through progressively responsible positions relating to the specialty”.

Section 214 provides that the period of authorized stay in H-1B status is up to six years, though aliens can stay in H-1B status indefinitely (in one year increments) for as long as they are the beneficiaries of employment-based immigrant visa petitions that have been pending for at least 365 days.

In most years, a majority of approved H-1B petitions (for initial employment as opposed to extensions of H-1B status) are for aliens working in computer-related occupations — 54.3 percent in fiscal year 2023. 

American Workers and the Abuse of the H-1B Program

Contrary to popular belief, there is (in most cases) no requirement that an employer recruit for American workers before seeking H-1B workers, and there is (in most cases) no prohibition against an employer laying off U.S. workers and replacing them with H-1B workers.

While employers using the H-1B program have long argued that it allows them to hire the “best and brightest” workers from around the world, Ronil Hira, associate professor of political science at Howard University, and Bharath Gopalaswamy, director of the South Asia Center at the Atlantic Council, concluded in 2019 that “most H-1B workers have no more than ordinary skills, skills that are abundantly available in the US labor market”.

Advocates for American workers have long argued that the program has had a devastating impact on American workers. The H-1B program’s supposed protection for American workers is its prevailing wage requirement. However, Norman Matloff, professor of computer science at the University of California, Davis, and longtime advocate for U.S. citizen and legal permanent resident workers and students, contends that employers can and do still “pay[] H-1Bs less than comparable Americans” and “hir[e] younger, thus cheaper, H-1Bs in lieu of older, thus more expensive (age 35+) Americans”. The level of wages paid to H-1Bs also helps answer the “best and the brightest” question, since, as President Trump’s Department of Homeland Security concluded in 2021, “salary generally is a reasonable proxy for skill level” and “earning the highest wages in an occupational classification and area of intended employment … correlates with higher skill levels”.

On Friday, President Trump issued a proclamation “Restriction on Entry of Certain Nonimmigrant Workers”, emphatically agreeing as to the veracity of these deleterious effects on American workers:

• The H-1B … program … has been deliberately exploited to replace, rather than supplement, American workers with lower-paid, lower-skilled labor. [This] … has undermined both our economic and national security. Some employers, using practices now widely adopted by entire sectors, have abused the H-1B statute and its regulations to artificially suppress wages….
• Among computer and math occupations, the foreign share of the workforce grew from 17.7 percent in 2000 to 26.1 percent in 2019. And the key facilitator for this influx of foreign STEM labor has been the abuse of the H-1B visa.
• The share of [Information Technology] IT workers in the H-1B program grew from 32 percent in Fiscal Year (FY) 2003 to an average of over 65 percent in the last 5 fiscal years.
• Reports … indicate that many American tech companies have laid off their qualified and highly skilled American workers and simultaneously hired thousands of H-1B workers.
• The high numbers of relatively low-wage workers in the H-1B program undercut the integrity of the program and are detrimental to American workers’ wages and labor opportunities…..

Further, President Trump stated in his Proclamation that “abuses of the H-1B program present a national security threat by discouraging Americans from pursuing careers in science and technology, risking American leadership in these fields.” 

President Trump concluded that “[i]t is therefore necessary to impose higher costs on companies seeking to use the H-1B program in order to address the abuse of that program while still permitting companies to hire the best of the best temporary foreign workers.” 

What is President Trump’s 100 Grand Entry Bar?

President Trump stated in his Proclamation that:

I … find that the unrestricted entry into the United States of certain [H-1B] foreign workers … would be detrimental to the interests of the United States because such entry would harm American workers, including by undercutting their wages.

Thus, Trump proclaimed that:

• Pursuant to section[] 212(f) … of the [INA] … the entry into the United States of aliens as [H-1B] nonimmigrants … is restricted, except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000….
• This restriction shall expire, absent extension, 12 months after the effective date of this proclamation … on September 21, 2025.

President Trump did provide DHS with waiver authority:

The restriction … shall not apply to any individual alien, all aliens working for a company, or all aliens working in an industry, if the Secretary of Homeland Security determines, in the Secretary’s discretion, that the hiring of such aliens to be employed as H-1B specialty occupation workers is in the national interest and does not pose a threat to the security or welfare of the United States.

What is § 212(f)?

Section 212(f) provides that:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

As I have written, in the Supreme Court’s 2018 decision in Trump v. Hawaii, the Court concluded in regards to President Trump’s September 24, 2017, proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, pejoratively pegged as a “Muslim ban”, that President Trump “lawfully exercised [his] discretion [under § 212(f)] based on his findings … that entry of the covered aliens would be detrimental to the national interest” and that “the language of §[ 212](f) is clear, and the Proclamation does not exceed any textual limit on the President’s authority”.

The Supreme Court noted the extraordinary level of discretion that § 212(f) provides to the president:

By its plain language, §[ 212](f) grants the President broad discretion to suspend the entry of aliens into the United States. . . .

[Section 212(f)] exudes deference to the President in every clause. … It is therefore unsurprising that we have previously observed that §[ 212](f) vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA … . ([citing the Court’s 1994 decision in Sale v. U.S., in which it found] it “perfectly clear” that President Reagan could “establish a naval blockade” to prevent illegal migrants from entering the United States).

The Court then concluded that the president’s need to justify his findings is quite limited:

• The sole prerequisite set forth in §[ 212](f) is that the President “find[]” that the entry of the covered aliens “would be detrimental to the interests of the United States.”
• Plaintiffs believe that the [Proclamation’s] findings are insufficient…. that [it] fails to provide a persuasive rationale for why nationality alone renders the covered foreign nationals a security risk.

• Such arguments are grounded on the premise that §[ 212](f) not only requires the President to make a finding that entry “would be detrimental…” but also to explain that finding with sufficient detail to enable judicial review. That premise is questionable. … But even assuming that some form of review is appropriate, plaintiffs’ attacks on the sufficiency of [President Trump’s] findings cannot be sustained. The 12-page Proclamation — which thoroughly describes the process, agency evaluations, and recommendations underlying the President’s chosen restrictions — is more detailed than any prior order … under §[ 212](f). [In 1996] President Clinton … explain[ed] in one sentence why suspending entry of members of the Sudanese government and armed forces “is in the foreign policy interests of the United States”….

  [P]laintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. “Whether the President’s chosen method” of addressing perceived risks is justified from a policy perspective is “irrelevant to the scope of his [§ 212(f)] authority” [quoting the Court’s decision in Sale].

The Court then emphasized the enhanced deference due to the president in the context of his carrying out his responsibilities regarding immigration, foreign affairs, and national security:

• [W]hen the President adopts “a preventive measure … in the context of international affairs and national security,” he is “not required to conclusively link all of the pieces in the puzzle before [courts] grant weight to [his] empirical conclusions” [quoting the Court’s 2010 decision in Holder v. Humanitarian Law Project].
• “Any rule of constitutional law that would inhibit the flexibility” of the president “to respond to changing world conditions should be adopted only with the greatest caution, and our inquiry into matters of entry and national security is highly constrained” [quoting the Court’s decision in Mathews].

Thus, President Trump’s use of his § 212(f) power as outlined in Friday’s Proclamation has a very strong chance of withstanding federal court scrutiny, especially if it reaches the Supreme Court.

How Many H-1B Employers Will Actually Be Subject to the 100 Grand Entry Bar?

The Proclamation’s § 212(f) entry bar will not apply to the majority of H-1B foreign workers, for it is not applicable to those H-1B workers who had already entered the U.S. with some other status before becoming beneficiaries of the H-1B program. U.S. Citizenship and Immigration Services (USCIS) reports that in fiscal year 2024, more than half (53.8 percent) of H-1B petitions approved for initial employment were for aliens already in the U.S. who had generally changed status from other nonimmigrant categories, while 46.2 percent were for aliens residing overseas. Of those aliens already in the U.S., 80 percent were converting from foreign student or exchange visitor status. 

Unfortunately, it is likely that many prospective H-1B workers and H-1B employers will be able to game the entry bar in order to avoid the $100,000 fee by making sure that the aliens are already in the U.S. prior to employers filing H-1B petitions on their behalf. Of course, this would greatly diminish the effectiveness of the entry bar. Currently, 2.2 percent of H-1B workers changing status change from tourist/business visitor status (B-1/B-2). This would likely be a prime avenue for abuse.

I presume that the Trump administration decided not to simply add a $100,000 fee to the H-1B program’s fee structure because of the delay inherent in amending regulations and the associated litigation risk. But, possibly the administration could go down both tracks, relying in the near-term on President Trump’s § 212(f) authority and in the long-term on a fee applicable to all H-1B workers.

How Much Will H-1B Employers Subject to the $100,000 Fee Actually Pay?

Secretary of Commerce Howard Lutnick stated multiple times at President Trump’s press conference on Friday that H-1B employers would have to pay “$100,000 per year” for each H-1B worker. (See in the video at  1:32:07, 1:32:41, 1:37:50, 1:37:59 and 1:38:02.) But President Trump’s Proclamation states that H-1B “petitions” need to be “accompanied or supplemented by a payment of $100,000”.

As USCIS explains, while “[p]etitions for initial employment are filed for new H-1B employment with an employer”, “[c]ontinuing employment petitions refer to extensions, amendments and sequential employment, which are filed for [aliens] already in the United States”. Further, USCIS explains that it “can approve H-1B petitions for an initial period of up to three years and can grant extensions for up to an additional three years.”

Thus, it seems that H-1B employers will only have to pay the $100,000 fee one time for each H-1B employee. Seemingly verifying this conclusion, White House Press Secretary Karoline Leavitt explained in a post on X on Saturday that:

To be clear: 1.) This is NOT an annual fee. It’s a one-time fee that applies only to the petition. 2.) Those who already hold H-1B visas and are currently outside of the country right now will NOT be charged $100,000 to re-enter. H-1B visa holders can leave and re-enter the country to the same extent as they normally would; whatever ability they have to do that is not impacted by yesterday’s proclamation. 3.) This applies only to new visas, not renewals, and not current visa holders. It will first apply in the next upcoming lottery cycle.

To what extent will a one-time only fee enable the Trump administration to close the gap between the wage level of H-1B workers as compared to that of comparable American workers? 

I have found that H-1B workers in “computer-related occupations” (CRO, as described and tallied by USCIS) are paid dramatically less than software developers (as described and tallied by the Bureau of Labor Statistics (BLS)) are paid nationwide. 

For petitions approved in 2023, USCIS reports that the average annual salary that employers promised to pay their petitioned-for H-1B CRO workers (for initial employment) was $99,000 (rounded by USCIS to the nearest thousand dollars). BLS estimates that the nationwide median salary for software developers was $132,270 in 2023. So, the average salary for new H-1B CRO workers was $33,270 less, 25.2 percent less, than the nationwide median salary for software developers.

Consequently, if H-1B employers would have to pay the government $100,000 each year for an H-1B worker, the average H-1B “salary” (including the fee payment) for an alien working six years for an employer as an H-1B would rise to $199,000, which would be $66,730 greater, 50.4 percent greater, than the median salary for a software developer. 

However, if the employer would have to pay the government only a single $100,000 fee for six years’ work for an H-1B worker, the average H-1B “salary” would only rise to $115,667, still $16,603 less, 12.6 percent less, than the median salary for a software developer (even lower if factoring in the time value of money). 

BLS estimates that in 2023 the salary for software developers at the 75th percentile nationwide was $167,540 and at the 90th percentile was $208,620. Thus, an average new H-1B CRO worker approved in 2023 was paid $68,540 less than a software developer at the 75th percentile, 40.9 percent less, and $109,620 less than a software developer at the 90th percentile, 52.5 percent less. 

If H-1B employers would have to pay the government $100,000 each year for an H-1B worker, the average H-1B “salary” of $199,000 would be $31,460 greater than a software developer at the 75th percentile, 18.8 percent greater, and would be $9,620 less, 4.6 percent less, than a software developer at the 90th percentile (even lower if factoring in the time value of money). 

But if the employer would have to pay the government only a single $100,000 fee for six years’ work for an H-1B worker, the average H-1B “salary” would be $115,667, which would be $51,873 less than a software developer at the 75th percentile, 31.0 percent less, and would be $92,953 less, 44.6 percent less, than a software developer at the 90th percentile (even lower if factoring in the time value of money). 

In fact, if a fee can only be charged once for an H-1B worker employed for six years with an employer, then that fee would have to be set at $411,240 for the H-1B worker’s “salary” to be the equivalent to that of a software developer at the 75th percentile, and $657,720 to be the equivalent to that of a software developer at the 90th percentile (even higher if factoring in the time value of money). 

Thus, if employers will only have to pay a one-time fee per H-1B worker, the fee would have to be set at a level higher than $100,000 in order to equalize the wages of H-1B computer workers with the median national wage for software developers. And the fee would have to be set at a level many multiples of $100,000 in order to equalize the wages of H-1B computer workers with those of relatively highly-paid software developers. These higher fees would not be unreasonable amounts for employers to pay for those H-1B workers who truly are “the best and the brightest”.