Murthy Law Firm Observations on $100,000 H1B Fee: Practice Reality vs Published Guidance

The U.S. Citizenship and Immigration Services (USCIS) recently issued guidance clarifying who will be subject to the $100,000 fee imposed under the 19.Sep.2025, executive proclamation addressing certain H1B filings. While the published guidance outlines specific circumstances in which the fee should apply, the Murthy Law Firm’s experience in practice suggests that the fee is being assessed far more broadly than the agency’s own explanations would indicate. Here we summarize the current USCIS guidance and then explain what we actually are seeing in H1B cases involving consular processing.

Summary of USCIS Guidance on the $100,000 Fee

According to the FAQ issued by USCIS on 21.Sep.2025, the $100,000 fee primarily applies to new H1B petitions filed on or after 21.Sep.2025, where the beneficiary is outside the United States and does not hold a valid H1B visa, and when a petition requests consular notification. Importantly, the subsequent guidance posted on the USCIS Specialty Occupation page does not make the distinction of a “new H1B petition.” The fee also can be assessed in certain situations where the USCIS determines a beneficiary is not eligible for a requested change of status, amendment, or extension.

Petitions filed prior to the 21.Sep.2025 effective date are not subject to the fee. The USCIS also explicitly notes that approved extensions, amendments, or changes of status for individuals inside the United States should not trigger the payment requirement, even if the individual later travels internationally and applies for visa stamping. This portion of the guidance still holds true.

In short, the agency’s published position suggests that the $100,000 fee should be limited in scope and tied closely to new H1B cases involving individuals without existing H1B visa validity who request consular processing. Still, this is not what has been directly observed.

What the Murthy Law Firm is Seeing in Practice

Despite the relatively narrow framework set out by the USCIS, the Murthy Law Firm’s attorneys are observing a different reality in adjudications. In practice, we are seeing requests for evidence (RFEs) issued in nearly all cases that request consular processing, regardless of whether the beneficiary appears to fall squarely within the fee exemption categories described in the USCIS guidance. These RFEs routinely demand payment of the $100,000 fee.

This has occurred even where:

• The individual already holds a valid, previously issued H1B visa stamp, or
• The petition is not a “new” H1B petition, but rather an extension, amendment, or change involving an existing H1B worker.

RFE Responses and Adjudication Delays

When we respond to these RFEs, we typically explain that the beneficiary is not subject to the fee under the USCIS’s own guidance. This includes arguments that:

• The individual is in possession of a valid H1B visa and therefore falls outside the scope of the proclamation, or
• The petition does not constitute a new H1B filing that would lawfully trigger the fee requirement.

Unfortunately, these responses frequently remain pending for extended periods with no further action by the USCIS, even when filed under premium processing. In some cases, adjudication stalls indefinitely. In others, the matter remains unresolved until the beneficiary’s visa stamp expires, at which point a denial is issued.

This practice appears inconsistent with the agency’s published guidance and creates significant uncertainty for employers and H1B workers alike.

Conclusion

While USCIS guidance suggests that the $100,000 H1B fee should apply only in limited circumstances, the Murthy Law Firm’s experience indicates that the fee is being assessed far more broadly in practice, particularly in cases involving consular processing. Employers and H1B workers should be aware of these trends when planning international travel or filing petitions that may involve consular notification. The Murthy Law Firm will continue to monitor developments closely and advocate for adjudications that align with the agency’s own stated policies.

Copyright © 2026, MURTHY LAW FIRM. All Rights Reserved