Understanding The New H-1B Fee Landscape
U.S. Citizenship and Immigration Services has issued critical guidance clarifying employer responsibilities regarding the controversial $100,000 H-1B fee introduced by a September 19, 2025 presidential proclamation. The clarification comes amid ongoing legal challenges and widespread confusion among employers struggling to understand their obligations under the new regulation.
The guidance, released on October 20, 2025, provides much-needed specificity about which H-1B petitions trigger the substantial fee and outlines the limited circumstances under which exceptions might be granted. This development represents a significant moment in U.S. immigration policy that could reshape how companies access global talent.
Who Must Pay The $100,000 Fee?
According to USCIS, the fee applies specifically to new H-1B petitions filed on or after September 21, 2025, for beneficiaries who are outside the United States and lack a valid H-1B visa. The agency also clarified that the fee applies to petitions requesting consular notification, port of entry notification, or pre-flight inspection for foreign nationals already in the United States.
Dan Berger of Green & Spiegel emphasized the importance of this distinction: “It says the fee only applies to cases filed for people outside the United States, so they can come in. Employers were nervous about doing change of status because the $100k might apply if they travel.”
Critical Exclusions And Change Of Status Clarification
Perhaps the most significant clarification for employers concerns change of status petitions. USCIS explicitly states that the $100,000 fee does not apply to petitions requesting an amendment, change of status, or extension of stay for foreign nationals already inside the United States who are granted such requests.
Furthermore, beneficiaries of such petitions won’t become subject to the fee if they subsequently depart the United States and apply for a visa based on the approved petition or seek to reenter on a current H-1B visa. This represents a major relief for employers managing existing international employees. These industry developments in immigration policy parallel broader shifts in how companies manage global talent.
Payment Process And Implementation Details
For the first time, USCIS has provided specific instructions for paying the $100,000 fee. Employers must submit payment through pay.gov using a dedicated form titled “H-1B VISA PAYMENT TO REMOVE RESTRICTION.” The timing of this guidance coincides with other market trends affecting how businesses approach international hiring and compliance.
The agency also confirmed that the proclamation doesn’t apply to previously issued and currently valid H-1B visas, or any petitions submitted before the September 21, 2025 deadline. This protection for existing visa holders provides stability for companies with established international teams.
Exception Process: High Bar For Relief
The presidential proclamation included language suggesting exceptions might be available if the Secretary of Homeland Security determines that hiring specific H-1B workers serves the national interest without threatening U.S. security or welfare. However, USCIS guidance imposes significantly stricter criteria than the original proclamation language.
According to USCIS, exceptions will be granted only in “extraordinarily rare” circumstances meeting a “high threshold” that includes demonstrating that no American worker is available to fill the role, the foreign worker doesn’t pose a security threat, and requiring payment would “significantly undermine” U.S. interests. This restrictive interpretation reflects ongoing debates about related innovations in employment-based immigration.
Legal Challenges And Broader Context
The $100,000 fee faces significant legal challenges, including a lawsuit from the U.S. Chamber of Commerce filed on October 16, 2026, and an earlier suit from a diverse group of plaintiffs filed on October 3, 2025. These legal battles highlight the contentious nature of recent immigration policy changes.
The fee arrives amid ongoing discussions about the H-1B program’s future, including the annual cap of 65,000 visas with an additional 20,000 exemptions for graduates of U.S. universities. Employers already face substantial costs beyond government fees, including requirements to pay the higher of actual or prevailing wages for comparable U.S. professionals. These policy shifts occur alongside other recent technology sector challenges affecting global talent mobility.
Strategic Implications For Employers
The USCIS guidance, while providing needed clarity, creates additional compliance complexity for companies relying on international talent. Employers must carefully assess whether petitions involve foreign nationals outside the U.S. versus change of status applications to determine fee applicability.
The restrictive exception criteria suggest that few employers will qualify for relief from the substantial fee. Companies should prepare for the financial impact while monitoring legal challenges that could potentially alter implementation. As these immigration policies evolve, they intersect with broader discussions about creative control in global business operations and talent management strategies.
The guidance represents another layer in the complex landscape of U.S. business immigration, requiring employers to navigate carefully between compliance obligations and strategic talent acquisition. For additional detailed analysis of USCIS implementation guidelines, consult the comprehensive coverage of H-1B fee clarifications.
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