USCIS Clarifies Who Will Be Subject to $100,000 H1B Fee

Today, the U.S. Citizenship and Immigration Services posted guidance on its website clarifying who is subject to the $100,000 fee imposed by Trump’s September 19, 2025 executive proclamation. Among other points of clarification, the updated guidance indicates that virtually all H1B workers will be subject to the fee, if the petition is filed for consular notification.

Petitions Subject to the Fee

The $100,000 payment applies to new H1B petitions filed on or after September 21, 2025, at 12:01 a.m. EDT, on behalf of beneficiaries who are outside the United States and do not have a valid H1B visa. The fee also applies to petitions filed on or after that date that request consular notification, port of entry notification, or pre-flight inspection for an alien in the United States.

Additionally, if a petition filed on or after September 21, 2025, requests a change of status, amendment, or extension of stay, and the USCIS determines the beneficiary is ineligible for that benefit, the fee will apply. This includes situations where the beneficiary is not in valid nonimmigrant status or departs the United States prior to adjudication of a change of status request.

Petitions and Visa Holders Not Subject to the Fee

The proclamation does not apply to any previously issued and currently valid H1B visas, or any petitions submitted prior to September 21, 2025, at 12:01 a.m. EDT. Holders of current H1B visas may continue to travel in and out of the United States without triggering the fee requirement.

Importantly, the fee does not apply to petitions filed on or after September 21, 2025, that request an amendment, change of status, or extension of stay for an alien inside the United States where USCIS grants such amendment, change, or extension. Beneficiaries of these approved petitions will not be subject to the payment even if they later depart the United States and apply for a visa or seek to reenter on a current H1B visa.

Payment Process and Timing

Petitioners must make the $100,000 payment through pay.gov prior to filing the H1B petition with the USCIS. Proof of scheduled payment from pay.gov or evidence of an exception granted by the Secretary of Homeland Security must be submitted at the time of filing. Petitions subject to the fee that are filed without proper payment documentation will be denied.

Rare Exceptions for U.S. National Interest

The Secretary of Homeland Security may grant exceptions in “extraordinarily rare circumstances” where the foreign national’s presence as an H1B worker is in the national interest, no American worker is available to fill the role, the alien does not pose a security threat, and requiring the payment would significantly undermine U.S. interests.

Conclusion

The updated guidance from the USCIS makes it clear that this $100,000 fee will be a tremendous burden to H1B employers and workers. We will now have to wait on the result of the various court cases challenging the proclamation to see if the courts allow it to remain in effect.

Copyright © 2025, MURTHY LAW FIRM. All Rights Reserved