News

This week U.S. Citizenship and Immigration Services (USCIS) finally addressed questions raised by the White House’s September Proclamation announcing a new H-1B fee. Under the Proclamation, some new H-1B petitions filed on or after September 21, 2025, require an additional $100,000 fee. Key points of the new guidance are outlined below. While questions remain, the guidance confirms the fee does not apply as broadly as many initially believed.
 

The new $100,000 H-1B fee applies to the following petitions filed on or after September 21, 2025:

• Petitions filed on behalf of individuals who are outside of the United States and who do not hold a valid H-1B visa.
• Petitions filed on behalf of individuals in the United States with a request for consular notification, port of entry notification, or pre-flight inspection.
• Petitions filed on behalf of individuals in the United States with a request for change of status to H-1B status, or an amendment or extension of stay in H-1B status, where USCIS denies the request for change, amendment, or extension of status.

The new $100,000 fee does NOT apply to the following:

• Petitions filed before September 21, 2025, and the subsequent visa application or U.S. entry of the beneficiaries of these approved petitions.
• Petitions filed on or after September 21, 2025, where the petition is approved for a change of status to H-1B, or an amendment or extension of stay in H-1B status. The fee will not apply to the subsequent visa application or U.S. entry of the beneficiaries of these approved petitions.
• Individuals who currently hold valid H-1B visas, whether they were in or outside of the United States on September 21, 2025.

National Interest Exception:

Where the new fee applies, the Secretary of Homeland Security can grant an exception to the fee only where the Secretary determines:

• The individual’s presence in the United States as an H-1B worker is in the national interest;
• No U.S. worker is available to fill the role;
• The individual does not pose a threat to the security or welfare of the United States; and
• Requiring the petitioning employer to pay the $100,000 fee on the individual’s behalf would significantly undermine the interests of the United States.

Employers may seek an exception by sending their request and all supporting documentation to H1BExceptions@hq.dhs.gov.

Paying the fee:

• If the $100,000 fee applies to a new H-1B petition, the fee must be paid before the petition is filed with USCIS. Evidence of the fee payment (or evidence of an exception) must be included with the H-1B petition.
• Petitioners should follow the instructions and pay the fee at pay.gov: https://www.pay.gov/public/form/start/1772005176.

Key Takeaways:

• As noted in our prior alert on this issue, the $100,000 fee does not apply to H-1B cap cases filed in 2025.
• Future H-1B cap cases should not be subject to the $100,000 fee if they are approved for a change of status. This would require the H-1B beneficiary to be present in the United States, in another lawful status, at the time of filing the H-1B petition and until H-1B approval.
• Based on our experience since September 21, 2025, and our analysis of USCIS’ new guidance, the fee does not apply to H-1B “change of employer” petitions for individuals currently in the United States and maintaining H-1B status.
• It is unclear whether USCIS will determine that the fee applies where the beneficiary is within a regulatory grace period, for example, following the end of an F-1 academic program or period of Optional Practical Training (OPT), or following termination of H-1B employment.

Details on the scope, applicability, and legality of the Proclamation’s new fee continues to evolve. In addition to changing government guidance, several groups recently filed lawsuits challenging the new Proclamation fee, including the U.S. Chamber of Commerce. We will continue to monitor this litigation as it will likely impact applicability of the new fee. We will provide updates on this topic during our next webinar and through future alerts.