CSG Law Alert: U.S. Citizenship and Immigration Services (USCIS) Issues Guidance on $100,000 H-1B Fee
Background
- On September 19, 2025, President Trump issued a proclamation restricting entry of certain nonimmigrant workers.
- The proclamation imposes an additional $100,000 payment on certain H-1B petitions filed at or after 12:01 am eastern daylight time on September 21, 2025.
- This proclamation has raised many questions, particularly regarding its applicability to beneficiaries already in the United States.
On October 20, 2025, USCIS issued guidance on who is and who isn’t subject to the $100,000 payment. Below are our takeaways:
When the $100,000 Fee Applies
- USCIS states the $100,000 fee applies to:
- “new H-1B petitions filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, on behalf of beneficiaries who are outside the United States and do not have a valid H-1B visa.”
- It also applies:
- “if a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, requests consular notification, port of entry notification, or pre-flight inspection for an alien in the United States.”
When the $100,000 Fee Does Not Apply
- The $100,000 fee does not apply to a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, that is requesting:
- An amendment,
- A change of status, or
- An extension of stay, “for an alien inside the United States where the alien is granted such amendment, change, or extension.”
- This includes change-of-employer petitions requesting an extension of stay.
- USCIS further mentions that the “beneficiary of such petition will not be considered to be subject to the payment if he or she subsequently departs the United States and applies for a visa based on the approved petition and/or seeks to reenter the United States on a current H-1B visa.”
This removes uncertainty regarding the common scenario of an F-1 visa holder seeking to change status to H-1B following their selection in the annual H-1B registration held in March.
Important Caveats
- Even if in the United States, the proclamation does apply if USCIS determines that the beneficiary of a new H-1B petition filed at or after 12:01 am eastern daylight time on September 21, 2025, is ineligible for a change of status or an amendment or extension of stay. USCIS mentions the following examples:
- A beneficiary who is not in a valid nonimmigrant visa status
- A beneficiary who departs the United States prior to adjudication of a change of status request
It is therefore critical to remain in the U.S. until adjudication of the H-1B change of status, amendment, or extension petition.
Exceptions
Exceptions to the $100,000 fee may be granted by the Secretary of Homeland Security in “extraordinarily rare circumstances,” where the Secretary determines that:
- “a particular alien worker’s presence in the United States as an H-1B worker is in the national interest;”
- “no American worker is available to fill the role;”
- “the alien worker does not pose a threat to the security or welfare of the United States;” and
- “requiring the petitioning employer to make the payment on the alien’s behalf would significantly undermine the interests of the United States”
Exception requests should be sent to H1BExceptions@hq.dhs.gov with supporting evidence.
Fee Payment
- USCIS has provided a payment link: https://www.pay.gov/public/form/start/1772005176
- Payment must be made prior to filing the H-1B petition.
- Petitioners must include proof of payment or evidence of an approved exception at the time of filing; otherwise, the petition will be denied.
- The $100,000 fee will be refunded if the H-1B petition is ultimately denied.
Current H-1B Visa Holders
- USCIS confirms that the fee does not apply to “any previously issued and currently valid H-1B visas, or any petitions submitted prior to 12:01 am eastern daylight time on September 21, 2025.”
- USCIS also confirms that the proclamation “does not prevent any holder of a current H-1B visa, or any alien beneficiary following petition approval, from traveling in and out of the United States.”