USCIS Issues Updated Guidance on New $100,000 H-1B Fee

On October 20, 2025, the U.S. Citizenship and Immigration Services (USCIS) issued an alert with updated guidance on the applicability of the new $100,000 H-1B fee implemented under the recent presidential proclamation restricting entry of certain H-1B visa holders.

As previously discussed, on September 19, 2025, President Trump issued a presidential proclamation titled, Restriction on Entry of Certain Nonimmigrant Workers, marking a significant shift in the administration of the H-1B visa program by implementing a new $100,000 fee on certain H-1B visa holders. Effective September 21, 2025, certain H-1B petitions must now include a $100,000 fee if they are subject to the proclamation. 

When Is the $100,000 Fee Applicable?

Based on the language of the updated guidance, the $100,000 fee 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.
• H-1B petitions requesting consular notification, port of entry notification, or pre-flight inspection for beneficiaries currently in the United States.
• H-1B petitions requesting a change of status, amendment, or extension of stay, where USCIS determines the beneficiary is ineligible for such changes (e.g., not in valid status or departs the United States before adjudication) and subsequently approves the case for consular notification, port of entry notification or pre-flight inspection. 

When Is the $100,00 Fee Not Applicable?

Based on the language of updated guidance, the proclamation does not apply to:

• H-1B petitions filed before the effective date of the proclamation, September 21, 2025.
• H-1B petitions requesting a change of status, amendment, or extension of stay for beneficiaries inside the United States where USCIS grants the amendment, change of status, or extension of stay.
• Beneficiaries who had H-1B petitions filed on or after September 21, 2025, granting a change of status, amendment, or extension of stay and later travel abroad and apply for a visa based on an already-approved petition.

Payment Instructions

Based on the language of the updated guidance, for those H-1B petitions subject to the $100,000 fee, petitioners must:

• Submit the $100,000 payment before filing the petition with USCIS.
• Use pay.gov to make the payment and follow the corresponding instructions on pay.gov.
• Include proof of payment or evidence of an exception from the secretary of Homeland Security with the H-1B petition.
• H-1B petitions filed without the required proof of payment or evidence of exception will be denied.

Exception Criteria

Based on the language of the updated guidance, exceptions to the $100,000 H-1B fee have been denoted as extraordinarily rare and granted by the secretary of Homeland Security only when:

• The beneficiary’s presence in the United States, as an H-1B worker, is in the national interest;
• No American worker is available to fill the role;
• The beneficiary does not pose a threat to U.S. security or welfare; and
• Requiring payment of the $100,000 fee by the petitioner would significantly undermine the interests of the United States.

Petitioners seeking an exception must submit a request with supporting evidence to H1BExceptions@hq.dhs.gov and receive approval of their exception request prior to submitting the H-1B petition. H-1B petitions filed without the required proof of payment or evidence of exception will be denied.

It should be noted that the instant USCIS guidance references exceptions for specific individuals only. The language of the proclamation indicates that exceptions may be available to specific individuals, all individuals within a company, or individuals with a specific industry if the secretary of Homeland Security determines, in their discretion, that the hiring of such individuals to be employed as H-1B workers is in the national interest and does not pose a threat to the security or welfare of the United States. Further guidance has not yet been provided by the government on criteria for exceptions for companies or industries that may be eligible for an exception.  

What This Means for Employers

This proclamation represents a substantial financial and procedural shift for employers seeking to hire foreign talent under the H-1B program. Employers can:

• Review their hiring plans and timelines carefully.
• Budget for the additional cost where applicable.
• Consult immigration counsel to assess petition eligibility and potential exceptions.

As the guidance on the applicability of the proclamation is fluid, please consult immigration counsel to confirm whether the $100,000 fee is applicable on a case-by-case basis. Given the hefty fee that could be imposed if USCIS determines a beneficiary is ineligible for a requested change of status, extension of stay, or amendment, it is extremely important for petitioners and beneficiaries to ensure beneficiaries are maintaining their status. Any changes to an H-1B worker’s worksite, duties, salary, etc., should be vetted by immigration counsel to confirm if any action is required before the change can be made.

NOTE: The information provided in this ASAP is based on Littler’s analysis and interpretation of the proclamation and subsequent guidance issued by the USCIS as of the date of publication. This information is subject to change without notice as further guidance is issued by the government and events develop. Employers with questions about this proclamation and its implementation are encouraged to consult with immigration counsel.