New Guidance On H-1B Proclamation/$100,000 Fee
This is a follow up to our September 20th article regarding the September H1B Proclamation.
Today, October 20, 2025, USCIS provided new guidance regarding the applicability of the $100,000 fee.
The fee does not apply to:
- H-1B change of status, extension, or amendment petitions filed on or after September 21, 2025.for individuals physically INSIDE the U.S.
- Anyone who subsequently departs the U.S. and applies for an H-1B visa based on an approved change of status, extension, or amendment petition and seeks to reenter the U.S.
- Any currently valid H-1B approval and any petition submitted prior to September 21, 2025.
- Individuals who already have a valid H-1B visa and are traveling into or out of the U.S.
The fee does apply to:
- New H-1B petitions filed on or after September 21, 2025, for individuals who are physically OUTSIDE the U.S. and do not have a valid H-1B visa.
- New H-1B petitions filed on or after September 21, 2025, for individuals physically INSIDE the U.S. requesting consular notification, port-of-entry notification, or pre-flight inspection.
- Individuals who are physically INSIDE the U.S. who requested a change of status, extension or amendment, but USCIS determines they are ineligible for a change of status, extension of stay or amendment (e.g., they are not in valid nonimmigrant status, or they depart the U.S. prior to adjudication) and their H-1B petitions are ultimately approved for consular notification.
How to pay the $100,000 fee
USCIS’ new guidance includes payment instructions. Petitioners subject to the fee are instructed to submit the $100,000 payment using pay.gov at: https://www.pay.gov/public/form/start/1772005176. Payment must be made prior to filing a petition with USCIS, as petitioners must submit proof that the payment has been scheduled from pay.gov at the time of filing (or evidence of an exception from the $100,000 payment from the Secretary of Homeland Security).
The new $100,000 fee payment form indicates if the application (H-1B petition) is not approved, a full refund will be processed.
Exceptions
The fee may be waived in the extraordinarily rare circumstance where the Secretary of Homeland Security determines that a particular beneficiary’s presence in the U.S. as an H-1B worker is in the national interest, that no U.S. worker is available to fill the role, that the worker does not pose a threat to the security or welfare of the U.S. and that requiring the petitioning employer to make the payment on the alien's behalf would significantly undermine the interests of the U.S. Petitioning employers who believe their worker satisfies this high threshold may seek an exception by sending their request and all supporting evidence to .
Other considerations
- The fee is a one-time payment per petition, not an annual fee.
- The fee will expire on September 21, 2026, unless renewed.
- Although the new guidance did not address 2026 cap-subject H-1B petitions head on, the information available suggests the fee is not be required for cap-subject H-1B cases for beneficiaries who are in the U.S. (e.g., those in F, TN, L, O, etc.).
What to monitor
Court litigation may significantly alter the proclamation's enforcement. On October 16th, the U.S. Chamber of Commerce filed a lawsuit challenging the legality of the new $100,000 H-1B fee. The lawsuit contends the fee exceeds executive authority, violates the Administrative Procedure Act (APA) by skipping public comment, and imposes a significant financial burden on American businesses, particularly smaller firms. Another pending lawsuit was filed earlier by a coalition of nursing, academic, and religious organizations (Global Nurse Force v. Trump).
In addition to the pending court cases, USCIS may issue further guidance on the proclamation's implementation. ILG will continue to provide timely and relevant updates as they become available. If you have any questions, please feel free to contact your ILG attorney or reach our firm at .