Update on New $100,000 H-1B Fee and Who Is Affected

By Attorney Juliana Carvajal-Yepes and Counsel Jason Levy

Since September 19, 2025, presidential proclamation established a new $100,000 fee for certain H-1B visa petitions, uncertainty remains as to which petitions are subject to the fee. New USCIS guidance released October 20[i] provides further clarification regarding who is impacted and when the new $100,000 fee applies. 

For additional background on the proclamation, see our previous blog post. 

Who Is Not Subject to the Fee?

The most important clarification is about to whom the fee does NOT apply. 

USCIS has confirmed that the fee does not apply to:

• Petitions filed before September 21, 2025.   Petitions approved before September 21, or even just filed before that date, are not subject to the fee, and beneficiaries of those petitions may [presumably receive new visas under those petitions and] continue to travel in and out of the U.S. 
• H-1B petitions filed from within the U.S. approved for an amendment, change of status, or extension of stay, even if the beneficiary of the petition departs the United States subsequent to that approval.
  • Nearly 85% of cap-subject H-1B petitions[ii] are filed with a request for a change of status (typically from F-1 student status).   Those cap-subject H-1B petitions generally should be exempt from the $100,000 fee.
  • While none of the guidance to date has mentioned cap-exempt H-1B petitions (e.g., for individuals working for non-profit research organizations), those petitions should be approvable without a fee, presuming the beneficiaries are in the U.S. in another status at the filing and are requesting a change of status, or are requesting an extension of H-1B status.
  • The same applies to individuals requesting a “remainder option” – that is, they previously held H-1B status and are applying to recapture the remainder of unused H-1B time.  Their petitions should be approvable without a fee, presuming the beneficiaries are in the U.S. in another status and request a change of status, or are requesting an extension of H-1B status.

Who Must Pay the $100,000 Fee?

According to USCIS, the new payment requirement applies to:

• New H-1B petitions filed on or after September 21, 2025, for beneficiaries outside the United States who do not hold a valid H-1B visa.  Examples include:
  • H-1B cap-subject petitions (to be filed following the FY2027 lottery in March 2026) for individuals outside the U.S.   About 15% of cap-subject petitions are filed with a request to obtain an H-1B visa at a consular post overseas for individuals who are outside the U.S., or who are ineligible to request a change of status (for example, someone who holds valid immigration status at the time of the lottery in March, but whose status expires before the H-1B start date in October). 
  • Cap-exempt or remainder options cases filed for individuals outside the U.S. 
  • Caveat: It is possible in rare cases that beneficiaries of new H-1B visa petitions might have a valid H-1B visa.  For example, H-1B visas for U.K. citizens are issued in 5-year increments.  Someone from the U.K. using the H-1B remainder option might have received an H-1B visa stamp in the past that is still valid.  Based on the plain language of the USCIS guidance, it appears that such individuals would not be subject to the $100,000 fee, but the implementation of this exception remains to be seen.  
• Petitions filed on or after September 21, 2025, requesting consular or port-of-entry notification, or pre-flight inspection for beneficiaries in the U.S. at the time of filing;
  • Typically, an H-1B petition filed on behalf of a beneficiary in the U.S. is filed as a change of status or extension of stay.  However, in some situations such a petition would be filed requesting consular notification – for example, someone might hold a different type of visa, let’s say L-1, but there is a gap between the end of the L-1 job and the start of a cap-exempt H-1B job.  In that case consular notification would be required – and those filing H-1B petitions in this situation might want to consider whether it is possible, for example, to delay the L-1 end date or expedite the H-1B start date to enable filing for a change of status. 
• Petitions filed on or after September 21, 2025, for a change of status, amendment, or extension that are ultimately approved for consular notification because USCIS determines the beneficiary is not eligible for such change of status, amendment, or extension (for example, if the beneficiary is out of status or departs the U.S. before adjudication).
  • Occasionally, a petitioner files a change of status petition to H-1B status and only learns of an undisclosed status violation (which prevents a change of status) when USCIS issues a request for evidence (RFE).  In that case, the best solution has been to respond to the RFE and ask USCIS to approve the petition for consular notification.  However, pursuant to the recent proclamation, the $100,000 H-1B fee would now apply in these circumstances.  If you have any status violations, please disclose them to counsel in advance of filing a change of status, so there will be no unpleasant surprises later in the process. 

This clarification addresses some of the most significant questions raised by employers since the announcement. Two separate lawsuits are already challenging the $100,000 fee.

How and When to Pay?

• The $100,000 payment must be made before filing the petition with USCIS.
• It’s unclear how this would work in the situation where the case is filed as a change of status and later converted to a consular petition. 
• Petitioners must submit proof of payment from Pay.gov or evidence of an exemption from the Department of Homeland Security with the petition filing.
• Any petition that is subject to the fee and filed without the required proof will be denied.
• If the petition is not approved, the government will issue a full refund.

USCIS has created a Pay.gov portal for submissions and an email address for exemption requests.

Possible Exceptions

The Secretary of Homeland Security may grant a waiver only in extraordinarily rare cases, where she determines that:

• The worker’s presence as an H-1B worker is deemed in the national interest,
• No U.S. worker is available to fill the role,
• The individual poses no risk to the security or welfare of the United States, and
• Requiring the payment would significantly undermine U.S. interests.
• We would be happy to consult with any employers who believe their case meets these requirements.  

Key Takeaways:

While the new proclamation adds a major financial and procedural burden for new H-1B filings abroad, USCIS’s latest clarification confirms that most in-country petitions, including those filed by F-1 students transitioning to H-1B status, will generally not be subject to the $100,000 fee. However, details of how one may qualify for an exception to the fee remain unknown.

Employers should review upcoming filings carefully and consult immigration counsel before initiating any H-1B petitions.

[i] https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations
[ii] www.uscis.gov/sites/default/files/document/reports/USCIS%20H-1B%20Authorized%20to%20Work%20Report.pdf

*Disclaimer: This information is presented for the purposes of general education and does not constitute legal advice.