USCIS Provides Some Answers, Raises New Questions About the $100,000 H-1B Fee

Overview

On October 20, 2025, USCIS updated its H-1B Specialty Occupations webpage with new information on the implementation of the presidential proclamation, Restriction on Entry of Certain Nonimmigrant Workers. Issued on September 19, 2025, the proclamation levies a $100,000 fee on certain H-1B petitions filed at or after 12:01 a.m. EDT on September 21, 2025. The new fee is part of a broader reform effort aimed at the H-1B nonimmigrant visa program.

Scope and Applicability

The $100,000 payment applies to new H-1B petitions filed on or after the effective date on behalf of beneficiaries who are outside the United States and do not possess a valid H-1B visa. The payment also applies to petitions requesting consular notification, port of entry notification, or pre-flight inspection for beneficiaries in the United States. Additionally, if a petition requests a change of status, amendment, or extension of stay and USCIS determines the beneficiary is ineligible (for example, due to lack of valid nonimmigrant status or departure from the U.S. prior to adjudication of a change of status request), the payment is required.

The $100,000 payment is not required for:

• H-1B petitions filed or approved prior to 12:01 a.m. EDT on September 21, 2025;
• Beneficiaries holding a previously issued and currently valid H-1B visa;
• Petitions filed for amendment, change of status, or extension of stay for a beneficiary inside the United States where such request is granted;
• Current H-1B visa holders or approved beneficiaries traveling in and out of the United States.

Payment Process

Petitioners subject to the payment requirement must submit the $100,000 fee as an ACH debit transaction via pay.gov. Proof of payment, or evidence of an exception granted by the Secretary of Homeland Security, must be included at the time of filing the H-1B petition. Petitions lacking the required documentation will be denied. However, the online payment form states a full refund will be processed “[i]f your application is not approved.”  It’s not clear if this refers to the underlying H-1B petition filed with USCIS or the subsequent H-1B visa application filed with the U.S. Consulate or Embassy.

Exception Process

Exceptions to the $100,000 payment may be granted by the Secretary of Homeland Security only in “extraordinarily rare circumstances”. To qualify, the Secretary must determine that the alien worker’s presence is in the national interest, that the worker does not pose a security or welfare threat, and that the payment would significantly undermine U.S. interests. Though not mentioned in the proclamation, USCIS states that petitioners must also establish that no American worker is available for the position. Employers seeking an exception must submit a detailed request and supporting evidence to the designated Department of Homeland Security email address (H1BExceptions@hq.dhs.gov).

Next Steps for Employers

USCIS’s clarification that the $100,000 fee will not apply where an amendment, change of status, or extension of stay is granted for a beneficiary inside the United States is a welcome development, but it shifts the risk focus to demonstrating well-documented maintenance of status. Employers should expect heightened scrutiny of status continuity in these filings. Any indication of unauthorized work or noncompliance—such as a worksite move preceding an amendment filing or payment below the LCA-stated wage—can lead USCIS to conclude that the beneficiary failed to maintain status, which could in turn trigger applicability of the fee if the request is denied or converted to consular processing. Similarly, filings during a grace period may invite closer review and increase the risk that USCIS will question status maintenance.

In this environment, an effective risk mitigation strategy requires proactive compliance and evidentiary rigor. Employers should ensure that amendments are filed before any material change takes effect, that wage payments match the governing LCA and payroll records, and that petitions clearly document continuous employment in the offered role and location. Where a grace period is involved, an employer should weigh timing and strategy carefully, including whether to defer changes until a petition is receipted or approved, and prepare a robust record demonstrating eligibility and status continuity. These measures can help preserve eligibility for the fee carve-out, reduce downstream costs, and position petitions for more efficient adjudication.

For further information, please contact a member of Honigman’s Immigration Practice Group.