USCIS Clarifies Scope of $100,000 H-1B Proclamation Fee

 U.S. Citizenship and Immigration Services (USCIS) issued new guidance clarifying how the $100,000 H-1B fee, imposed under the Presidential Proclamation of September 19, 2025 titled “Restriction on Entry of Certain Nonimmigrant Workers”, will apply. This policy represents one of the most significant cost changes in employment-based immigration to date.

Who Must Pay

• New H-1B petitions filed on or after September 21, 2025 for beneficiaries outside the U.S. without a valid H-1B visa.
• Petitions requesting consular notification or port-of-entry notification, even if the beneficiary is inside the U.S. at the time of filing.
• Some change-of-status, amendment or extension petitions if USCIS determines the beneficiary is ineligible (e.g., out of status or departs the U.S. before adjudication).

Who Is Exempt

• H-1B petitions filed before September 21, 2025 — beneficiaries continue visa/entry processing under prior rules.
• Holders of valid H-1B visas issued prior to the date, with a valid I-797 approval notice.
• In-country amendments, changes of status or extensions filed and approved for beneficiaries already in the U.S. — travel abroad and re-entry after approval will not automatically trigger the $100 K fee.

Payment Rules
Employers must pay the fee before filing the petition. Proof of payment via pay.gov must be included with the filing. Petitions that fall under the proclamation but are submitted without payment or exception proof will be denied.

Exception Requests
Limited exceptions may be granted by the Department of Homeland Security (DHS) only if all of the following are demonstrated:

1. The worker’s presence is in the national interest.
2. No U.S. worker is available for the role.
3. The worker poses no security or welfare risk.
4. Requiring payment would undermine U.S. interests.
   Requests must be submitted to [email protected]. USCIS emphasizes these will be extraordinarily rare.

Key Takeaways

• In-country filings (amendments, extensions, changes) are not subject to the fee if approved.
• Beneficiaries of approved in-country petitions may travel and apply for visas without paying the fee — though travel risk remains due to consular uncertainty.
• The fee will primarily affect new overseas H-1B beneficiaries in FY 2026 and beyond.
• The rule may also impact individuals who cannot extend or change status in the U.S., and those nearing the six-year H-1B limit dependent on leaving the U.S. and re-entering.
• Exception relief exists but will apply very narrowly.

Litigation and What to Watch
The proclamation is already subject to legal challenge:

• The case Global Nurse Force v. Trump (filed 3 Oct 2025, N.D. Cal.) argues that the fee exceeds presidential authority under the Immigration and Nationality Act (INA) and violates the Administrative Procedure Act (APA). 
• ​Additional litigation by the U.S. Chamber of Commerce (filed Oct 16 2025) also challenges the fee as unlawful.
• Key point: Until a court issues a ruling or injunctive relief, the $100,000 fee remains in effect.

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Resource

• https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations