Legal Updates

On October 20, 2025, USCIS updated its website to provide additional information about which applicants are subject to the $100,000 H-1B fee imposed by the September 19, 2025, Proclamation entitled Restriction on Entry of Certain Nonimmigrant Workers. Under the Proclamation, certain H-1B petitions filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, must be accompanied by an additional $100,000 payment as a condition of eligibility.

Who is subject to the $100,000 payment:

The Proclamation 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 located outside the United States and do not have a valid H-1B visa. The Proclamation 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.

In addition, if a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, requests a change of status, amendment, or extension of stay--and USCIS determines that the alien is ineligible for a change of status or an amendment or extension of stay (e.g., is not in a valid nonimmigrant visa status or if the alien departs the United States prior to adjudication of a change of status request)--the Proclamation will apply and the payment must be paid as instructed by USCIS.

The Proclamation does not apply to:

• Previously issued and currently valid H-1B visas;
• Petitions submitted prior to 12:01 a.m. eastern daylight time on September 21, 2025.

In addition, 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.

The Proclamation also 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, change of status, or extension of stay for an alien inside the United States where the alien is granted such amendment, change, or extension. Further, an alien beneficiary later leaves the United States and applies for a visa based on the approved petition and/or seeks reentry on a current H-1B visa, they will not be subject to the payment.

Exceptions granted by the Secretary of Homeland Security:

The Secretary of Homeland Security may grant exceptions to the $100,000 payment in extraordinarily rare circumstances—specifically, when an H-1B worker’s presence is in the national interest, there are no American worker 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 payment on the alien's behalf would significantly undermine the interests of the United States.

Conclusion

While this guidance seems clear in defining who is subject to the additional $100,000 fee, it contradicts previous guidance that has been published by the government.  We will continue to monitor this closely and release any policy changes as they occur.