The regulation requires evidence that the beneficiary participated as a judge of the work of others, either individually or on a panel, in the same or an allied field. Participation matters. USCIS usually wants proof that the beneficiary actually judged the work, not merely proof that someone invited the beneficiary to do so.

A recent AAO’s senior scientist decision illustrates the issue. The petitioner submitted emails requesting manuscript reviews. One email showed that the beneficiary agreed to review a paper. The AAO found the evidence insufficient because the record did not prove that the beneficiary completed the reviews. The request and acceptance suggested possible judging, but they did not prove participation.

The central word is “about.” A publication that merely quotes the beneficiary does not necessarily discuss the beneficiary. A company profile that names the beneficiary once may not qualify. A press release about a product, conference, grant, survey, restaurant, film, or research group may not satisfy the criterion if it does not meaningfully discuss the beneficiary’s own work.

The AAO has repeatedly rejected passing references. In one university global engagement case, articles from news websites quoted or mentioned the beneficiary, but the AAO found that the articles did not constitute published material about her work. In a business case, an article in Sport Aviation discussed a company and referred to the beneficiary as an executive. The AAO questioned whether the article was about the beneficiary and also noted that the petitioner failed to prove the publication’s intended audience as a professional publication.

The regulation does not reward ordinary professional participation. It rewards selective membership based on achievement. This distinction matters because many reputable organizations have open membership. A national organization may govern a field, issue rules, host competitions, provide training, or promote professional development. None of that proves that each member entered through expert judgment of outstanding accomplishments.

A recent AAO’s equestrian event decision illustrates the point. The petitioner relied on membership in national equestrian organizations and emphasized that those organizations regulate eventing and establish competition standards. The AAO recognized the organizations’ role in the sport but distinguished that fact from the membership requirement. The petitioner had to show that the beneficiary’s level of membership required outstanding achievement judged by recognized experts. General membership in an important organization did not establish that point.

For O-1A cases, which include science, education, business, and athletics, the regulation permits evidence of nationally or internationally recognized prizes or awards for excellence. For O-1B arts cases, the regulation requires significant national or international awards or prizes, and it gives examples such as the Academy Award, Emmy, Grammy, or Directors Guild Award. These examples do not mean that only those awards qualify. They do, however, show the level of significance USCIS will consider.

Review of AAO decisions provides useful examples. In a dance choreographer case, the beneficiary won second and third place awards at an international dance competition. The record described the event as large and international, with thousands of dancers. The AAO still found the evidence insufficient because the petitioner did not prove the purpose of the awards, selection process, eligibility criteria, or recognition of the awards beyond the event itself. In a tattoo artist case, the petitioner relied on magazine contest awards and social media recognition. The AAO rejected the claim because public voting, self-promotional posts, and general statements about the magazine did not establish that the awards carried significance comparable to the regulatory examples.

This article provides the public with a practical and legally grounded analysis of USCIS Policy Memorandum PM-602-0199. The memorandum has generated understandable concern because it discusses adjustment of status as a discretionary benefit and directs officers to weigh certain facts more carefully.  The memorandum does not end adjustment of status, does not repeal INA § 245, does not eliminate dual intent, and does not create a categorical bar to green card approval inside the United States.

This article offers general information and public legal analysis. It does not substitute for individualized legal advice, because adjustment strategy depends on the applicant’s immigration history, status, category, family facts, travel history, employment records, and admissibility issues.

Overview of Restriction Types

The United States currently maintains three distinct types of visa restrictions:

The legal engine: INA 212(f) plus a moving country list

The President issued Proclamation 10949 on June 4, 2025, then expanded and modified the framework in Proclamation 10998 on December 16, 2025. Proclamation 10998 takes effect at 12:01 a.m. Eastern on January 1, 2026.

USCIS has now issued more instructions interpreting the Proclamation. Employers and foreign professionals must understand how this new requirement works .

Who Must Pay the $100,000

Authority under INA § 212(f)

The proclamation rests on INA § 212(f), 8 U.S.C. § 1182(f), which empowers the president to “suspend the entry of all aliens or any class of aliens” or impose “any restrictions” deemed appropriate on their admission. Importantly, this power governs entry at the border, not the status of people who are already inside the United States.  By its terms, the proclamation:

• Applies to foreign nationals outside the U.S. seeking to enter after the effective date after 12:01 AM (ET) on September 21, 2025
• Does not apply to extensions of status or change-of-status petitions filed while the worker remains inside the United States.
• Does not alter the validity of previously approved H-1B petitions or visas.

USCIS and CBP have both confirmed that the rule is entry-focused as it imposes a condition of admission, not a retroactive obligation for individuals already maintaining lawful status in the U.S.

What Happens with New Petitions and Travel?

A thorny question arises under the Proclamation when a worker already in the U.S. changes status to H-1B or is already in H-1B and changes employers after the effective date of the proclamation.  In both cases, the filing will be a new H-1B petition on behalf of the foreign worker.   Suppose a beneficiary has a valid H-1B petition and a subsequent employer files a new petition (“H-1B transfer”). While the worker remains in the U.S., the proclamation does not apply based on its express terms:

 Section 1.  Restriction on Entry.

(a)  Pursuant to sections 212(f) and 215(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(f) and 1185(a), the entry into the United States of aliens as nonimmigrants to perform services in a specialty occupation under section 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C. 1101(a)(15)(H)(i)(b), is restricted….

(b) The Secretary of Homeland Security shall restrict decisions on petitions not accompanied by a $100,000 payment for H-1B specialty occupation workers under section 101(a)(15)(H)(i)(b) of the INA, who are currently outside the United States….

See, Restriction on Entry of Certain Nonimmigrant Workers, Presidential Proclamation (Sept. 19, 2025), issued under INA §§ 212(f) and 215(a), 8 U.S.C. §§ 1182(f), 1185(a).

Let’s parse this language. 

Textual Analysis

Section 1(b) directs DHS to restrict petition decisions for H-1B workers “currently outside the United States.” That condition attaches at petition adjudication, not at visa stamping.

Section 1(a) restricts “entry … except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000.”

Section 2(b) says the Secretary of State “shall verify receipt of payment … during the H-1B visa petition process.”

So DOS has a role at the visa issuance stage, consular officers must confirm that the employer made the $100,000 payment if the proclamation requires it.

• What Happens if The Worker Was Inside the U.S. at Petition Filing

If the worker was inside the U.S. when the new petition was filed and adjudicated, Section 1(b) does not require the $100,000 payment.

When that worker later travels abroad for visa stamping, the petition itself was already adjudicated without the fee because the person was not “currently outside.”

Consular officers should not impose the fee retroactively, because DOS can only “verify” a payment where one is legally required under Section 1(b).

• What Happens if the Worker Was Outside at Petition Filing

If the worker was outside the U.S. when the petition was filed after Sept. 21, 2025, the proclamation requires the $100,000 payment at the petition stage. DOS must then verify payment before issuing a visa, and CBP must enforce it at the border.

Practical Concern

Even though the text supports exemption for those who were inside the U.S. at filing, DOS might take a broader view at consular posts, reasoning that  “Entry under this petition requires proof of the $100,000.” That would stretch the proclamation, but consular discretion is wide.

• Employers should retain proof of the worker’s U.S. presence at the time of petition filing (I-94, pay records, affidavits).
• Workers should carry this documentation to the consular interview to rebut any attempt to misapply the fee.
• If a consulate insists on payment despite the exemption, that could set up grounds for an APA or ultra vires challenge.

Risk Management and Strategy

At Zneimer & Zneimer, we advise employers and H-1B workers to:

1. Assess travel needs carefully after a new petition. Unnecessary international travel may create exposure to the $100,000 condition.
2. Document exemptions where possible. Nonprofit institutions of higher education, nonprofit research organizations, and government research entities often qualify for relief.
3. Prepare waiver arguments in advance if national interest justifications apply.
4. Monitor agency guidance. DHS and the Department of State are expected to issue further instructions on how consular posts and ports of entry will implement this rule.

Conclusion

Because the proclamation derives from INA § 212(f), its reach is limited to entry into the United States. Workers inside the country who extend or change status are not directly affected. But once a worker travels abroad, the $100,000 condition may apply when they return, especially if they reenter under a new employer’s petition.  We are waiting for further guidance.  Immigration law is often subject to rapid changes, and employers cannot afford to make mistakes. At Zneimer & Zneimer, P.C., we provide ongoing analysis and proactive strategy to protect our clients’ interests. Contact us today to review how this proclamation affects your workforce and to plan the safest path forward.

Executive Orders Talk To the Agency

An executive order directs the federal bureaucracy. It tells agencies how to interpret or enforce existing law. For example, a president may issue an executive order instructing the Department of Homeland Security to review fraud detection in the H-1B program. An executive order does not create new legal obligations for the public. It organizes how agencies carry out duties Congress has already assigned.