USCIS has issued official guidance on how the September 19, 2025 Presidential Proclamation, Restriction on Entry of Certain Nonimmigrant Workers, applies the new $100,000 fee to certain H-1B cases.
The policy took effect at 12:01 a.m. EDT on September 21, 2025 and requires petitioners, in defined scenarios, to pay the fee through Treasury’s pay.gov before filing Form I-129.
However, it is important to note that the fee is currently subject to legal challenge. Multiple lawsuits argue the proclamation exceeds presidential authority and violates immigration and administrative law. Plaintiffs include unions, employers, religious groups and the U.S. Chamber of Commerce. Early filings seek injunctions to halt enforcement while the cases proceed, so the requirement remains under active legal scrutiny.
New H-1B Fee Guidance
The 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, and to petitions filed for consular notification even if the beneficiary is in the United States when the petition is filed.
The fee also applies when USCIS denies a requested in-country change of status, extension, or amendment and approves only for consular processing.
In-country approvals for change of status, extension, amendment or change of employer are not subject to the payment, and later travel to obtain a visa based on that approval does not retroactively trigger it.
The payment is a one-time charge per qualifying petition rather than an annual fee. Individuals who already hold a valid H-1B visa issued before the effective date are generally outside scope under the current guidance.
USCIS describes a narrow exception process that DHS will apply in extraordinarily rare cases. An employer should show that the role is in the national interest, that no US worker is available, that the individual poses no security or welfare risk and that imposing the fee would significantly undermine US interests.
Petitioners should secure DHS approval for an exception before filing any petition that would otherwise be subject to the payment.
Employers should complete the payment on the Treasury pay.gov portal, retain the confirmation and tracking details, and file the I-129 with proof of payment or proof of an approved exception. Petitions that are subject to the fee and filed without proof are denied. Travel timing is a practical risk because a trip during a pending change of status or extension can break eligibility for an in-country decision and move the case into consular processing, which then triggers the fee. There is active litigation challenging the Proclamation and the fee, so timing advice may change if a court issues interim relief.
Coverage & Exemptions
Petitions filed for consular notification are within scope regardless of the beneficiary’s location at the time of filing. Cases filed for change of status, extension or amendment can be pulled into scope if USCIS denies the in-country benefit and approves only for consular processing. In-country approvals for change of status, extension, amendment or change of employer remain outside scope, and later visa stamping based on that approval does not retroactively trigger the payment.
Holders of a valid H-1B visa issued before September 21, 2025 are generally outside scope under current guidance.
DHS may grant an exception only in extraordinarily rare cases. The assessment is case specific for a particular foreign national rather than a company- or industry-wide carve-out, and petitioners should obtain approval before filing any petition that would otherwise be subject to the payment.
International travel while a change of status or extension is pending can convert a case to consular processing and trigger the fee. Employers should align filing plans with project needs and travel schedules to avoid unintended exposure.
NNU Perspective
Filing a case that should include the $100,000 payment without proof will lead to a denial, which can collapse start dates and jeopardize headcount where the role is time sensitive. A denied cap case risks losing the registration year and forces a refile in the next cycle, which can leave the role vacant or push the work to another market. If an employee travels during a pending change of status or extension and the case flips to consular processing without the payment, the individual can fall out of work authorization and the employer can face I-9 exposure with back pay and reinstatement risks. Where a worker’s status lapses, unlawful presence can accrue, which raises reentry bars and complicates future filings. Recouping the fee from the worker in a way that depresses the required wage can create Labor Condition Application violations with civil penalties, public posting fallout and possible debarment from the H-1B program. Misstating payment status or submitting incomplete evidence can be treated as a material misrepresentation with downstream credibility consequences across future filings.
For H1B cap season planning, decide early whether to pursue change of status or consular processing and reflect the fee in offer letters, mobility budgets and start date expectations. Keep a watching brief on the litigation and be ready to adjust filing windows if a court pauses implementation.
For cases already in train, keep filings in a posture that supports an in-country approval where the facts allow. That requires clear evidence of maintenance of status, tight coordination on start dates, and a pause on discretionary travel until the approval posts. Where consular processing is unavoidable, secure finance sign-off before HR proceeds because the six-figure outlay changes hiring economics and candidate acceptance. Treat the exception route as a last resort for genuine national interest scenarios with strong proof.
Need assistance?
For specialist advice on the new H-1B fee, how it affects your organization and your recruitment and workforce planning, contact our US attorneys.
You can read the full Proclamation here.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.