Real World Impact: USCIS has published additional guidance relevant to the new $100,000 H-1B fee requirement established by presidential proclamation and discussed in our prior Alert, including a link for making the payment and clarification on the scope and applicability of the fee.
Background: As discussed in our prior Alert, on September 19, 2025, President Trump issued a presidential proclamation restricting entry by nonimmigrants to perform services in a specialty occupation under 101(a)(15)(H)(i)(b) of the INA unless accompanied by a $100,000 fee. The proclamation applies to new H-1B petitions (those submitted after 12:01 am September 21, 2025) for workers outside the U.S.
Paying the $100,000 Fee: USCIS has updated its webpage for H-1B Specialty Occupations to include a dedicated section on the presidential proclamation and to whom it applies, including a link for making the $100,000 payment. The webpage is available at https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations, and the payment link is available at https://www.pay.gov/public/form/start/1772005176.
The government had not previously provided for a method for paying the $100,000 fee, which must be paid before filing certain H-1B petitions for workers. At the time of filing the H-1B petition, petitioning employers must submit proof that the payment has been scheduled from pay.gov or evidence of an exception from the $100,000 payment from the Secretary of Homeland Security. Petitions subject to the $100,000 payment that are filed without a copy of the proof of the payment from pay.gov or evidence of an exception from the Secretary of Homeland Security will be denied.
The following are key elements to be aware of regarding the fee:
- Petitioners must submit the required $100,000 payment using pay.gov prior to filing, following the instructions on pay.gov at the following link: https://www.pay.gov/public/form/start/1772005176
- The passport information entered into the payment form for the intended beneficiary must match the passport information the beneficiary presents at admission according to the payment form.
- Petitions subject to the fee will be denied if submitted without proof of payment from pay.gov or evidence of a national interest exception.
- The fee will be refunded to the petitioner if the petition is denied, according to the online payment form.
- Questions about the payment portal itself can be directed to H1BVisaRRP@hq.dhs.gov.
What is the National Interest Exception? According to USCIS, the Secretary of DHS will grant requests for a national interest exception (NIE) in the “extraordinarily rare circumstances” where the Secretary determines that:
- A particular 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;
- Requiring the petitioning employer to make the payment on the foreign national’s behalf would significantly undermine the interests of the United States; AND
- The beneficiary does not pose a threat to the security or welfare of the United States.
Requests for a NIE along with supporting evidence must be emailed to H1BExceptions@hq.dhs.gov. Currently, USCIS has not issued guidance or commentary regarding what factual circumstances would demonstrate a lack of available American workers (e.g., a labor market test, high local unemployment, scarcity of available workers in particular industry or occupation overall, etc.). Additionally, no clarification has yet been provided regarding who will process NIE requests, their training for review of such requests, and the timeframe for doing so.
Clarification of Circumstances in Which the Fee Applies: USCIS has also updated its website to clarify that the $100,000 fee does not apply to a requested H-1B change of status, amendment, or extension of stay for a foreign national inside the United States where USCIS determines that the worker is in fact eligible for the requested change of status, amendment or extension of stay.
This means that any H-1B petition filed for a foreign national—whether to amend or extend the employment of a current H-1B employee, to transfer an H-1B worker from another employer, or for a change of status (for example, for an F-1 international student to obtain H-1B status for the first time)—should not be impacted by the $100,000 fee if the foreign national holds a valid nonimmigrant status in the U.S. when the employer files the petition, and if USCIS approves the requested amendment, extension or change of status. Further, the H-1B worker will not be considered subject to the $100,000 fee if he or she subsequently departs the United States and applies for an H-1B visa based on the approved petition and/or seeks to reenter the United States on a current H-1B visa.
We strongly recommend that foreign nationals on whose behalf an employer files an H-1B petition (whether for amendment, change of status or extension of stay) remain in the United States for the entirety of their petition processing. If such individuals depart the U.S. during petition processing, USCIS could find that they abandoned the request for USCIS to take stateside action, thus triggering the $100,000 fee requirement. USCIS indicated that H-1B petitions seeking or approved for consular notification, port of entry notification, or pre-flight inspection would be subject to the $100,000 fee.
Multiple lawsuits have been filed against implementation of the presidential proclamation, including a lawsuit by the U.S. Chamber of Commerce.