United States Citizenship and Immigration Services (USCIS) posted on its website yesterday a statement that provides some clarification on the applicability of the Restriction on Entry of Certain Nonimmigrant Workers Proclamation of September 19 of this year.  As we reported in our Alert of September 23, the proclamation requires that “new” 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 fee.

Which H-1B Petitions Are Subject to the $100,000 Fee?

The USCIS guidance provides examples of H-1B petitions that will be subject to the $100,000 fee.

Example 1: The fee must be paid if the following conditions exist:

• The H-1B petition was filed at or after 12:01 a.m. eastern daylight time on September 21, 2025; AND
• The beneficiary was outside the United States and did not have a valid H-1B visa

Example 2: The fee must be paid if the following conditions exist:

• The H-1B petition was filed at or after 12:01 a.m. eastern daylight time on September 21, 2025; AND
• If the beneficiary was in the United States, the petition requested consular notification, port of entry (POE) notification, or pre-flight inspection (PFI) notification

Example 3: The fee must be paid if the following conditions exist:

• The H-1B petition was filed at or after 12:01 a.m. eastern daylight time on September 21, 2025; AND
• Requested a change of status or amendment or extension of stay; AND
• USCIS determines that the beneficiary is ineligible for a change of status or an amendment or extension of stay.  Such a determination may be made if the beneficiary is not in valid nonimmigrant status or if the beneficiary departs the United States before the adjudication of a change of status request.

The $100,000 fee is thus required for an H-1B petition that (1) is filed for a beneficiary that is outside the United States at the time of filing and does not have a valid H-1B visa; (2) is filed for a beneficiary that is in the United States at the time of filing but requests consular, POE, or PFI notification rather than an extension of stay or change of nonimmigrant status; and (3) whose request for a change of status, amendment, or extension is denied, even if the petition itself is approved (a “split decision” outcome).  In this latter case, it is crucial for H-1B beneficiaries to avoid creating a situation that would allow USCIS to deny a change of status, amendment, or extension request.  Such situations could involve a failure to maintain status, a lack of employment at the time the petition is filed (taking into account the discretionary post-employment sixty-day grace period), leaving the country before the petition is adjudicated, and an untimely filing.

Example 1 above contains the requirement that the H-1B beneficiary, in addition to being outside the United States, not have a valid H-1B visa.  This strongly implies that an H-1B petition filed for a person outside the country who has a valid H-1B visa in his/her passport would not be subject to the $100,000 fee.  The USCIS guidance further states that the Proclamation does not apply to “any previously issued and currently valid H-1B visas.”  Although the meaning of this statement should be clarified by the agency, it may create an exception to the applicability of the $100,000 payment for persons who hold valid H-1B visa stamps, even if they are outside the United States when an H-1B petition is filed for them.  Thus, an H-1B worker who holds a valid H-1B visa and leaves the United States because the H-1B six-year limit is approaching but subsequently obtains a basis for a post-sixth year extension would be able to have an H-1B petition with consular, POE, or PFI notification filed and approved on his/her behalf and could enter the United States in H-1B status without incurring the $100,000 fee as long as his/her previously issued H-1B visa remains valid.

Which H-1B Petitions Are Not Subject to the $100,000 Fee?

The USCIS guidance also describes which H-1B petitions will not incur the $100,000 fee.  If the following conditions exist, the fee need not be paid:

• The H-1B petition was filed at or after 12:01 a.m. eastern daylight time on September 21, 2025; AND
• The petition requested an amendment, change of status, or extension of stay for a beneficiary present in the United States at the time of filing; AND
• USCIS grants the amendment, change, or extension

The USCIS guidance adds that the H-1B beneficiary of such a petition may also leave the United States after petition approval, apply for and receive a visa based on the petition, and reenter the country without being subject to the fee.

Per the guidance, an H-1B petition filed for an H-1B beneficiary in the United States to allow that person to join a new employer in H-1B status (an H-1B change of employer petition) will not incur the $100,000 fee as long as a change of status or extension is requested and granted by USCIS.  In contrast, a change of employer petition requesting consular, POE, or PFI notification or one whose change of status or extension of stay application is denied will be subject to the $100,000 fee.  Similarly, an H-1B petition filed by a petitioner on behalf of an existing employee to extend his or her employment authorization and period of stay will not be subject to the fee, neither will an amended petition filed by such an employer to notify USCIS of a change in the employee’s employment (provided that consular, POE, or PFI notification is not requested).

Does This Mean that Next Year’s H-1B Cap-Subject Petitions Will Not be Subject to the $100,000 Fee?

The USCIS guidance seems to exempt from the $100,000 fee all petitions, including FY2027 cap-subject petitions, that request and are granted a change of status (most commonly, F-1 to H-1B).  To be eligible for a change of status, the beneficiary must be present in lawful status in the United States at the time of filing.  Unless USCIS reconsiders this position, any cap-subject change of status H-1B petitions filed for employment with a start date of October 1, 2026, or later will not incur the $100,000 fee, provided that USCIS grants the change of status.

When and How to Pay the $100,000 Fee

The USCIS guidance indicates that petitioners should submit the required $100,000 payment using pay.gov, following the instructions on pay.gov at the following link: https://www.pay.gov/public/form/start/1772005176.  The guidance also notes that payment of the $100,000 fee must be made before filing an H-1B petition with USCIS.  Proof that the payment has been scheduled from pay.gov or evidence of an exception from the $100,000 payment from the Secretary of Homeland Security must be provided at the time of filing the H-1B petition.  USCIS also states that petitions subject to the $100,000 payment that are filed without such proof of payment or evidence of an exception will be “denied” rather than rejected and returned to the petitioner.  This means that all other fees required for H-1B petitions, including the Form I-129 filing fee, the asylum program fee, the ACWIA fee, and the fraud prevention fee will be cashed and not returned.

Can an Exception from the Payment of the $100,00 Fee Be Obtained?

The USCIS guidance states that exceptions to the $100,000 payment are granted by the Secretary of Homeland Security in an “extraordinarily rare circumstance” where all four of the following conditions are met:

• The H-1B worker’s presence in the United States is in the national interest;
• No American worker is available to fill the role;
• The H-1B worker does not pose a threat to the security or welfare of the United States; and
• Requiring the petitioning employer to make the payment on the H-1B worker’s behalf would “significantly undermine the interests of the United States.”

Requests for such an exception should be made by email that includes supporting evidence to [email protected].  It is unlikely, given the stringent standards outlined above, that many exceptions will be granted.  Although the proclamation also references national interest exceptions on a company-wide and industry-wide basis, no mention of these appears in the new guidance.