USCIS Clarifies $100,000 Fee Applicability for H-1B Petitions Under Presidential Proclamation
On October 20, 2025, the U.S. Citizenship & Immigration Services (“USCIS”) provided additional guidance[1] on the implementation of President Donald J. Trump’s proclamation[2] issued on September 19, 2025, restricting the entry of foreign nationals seeking entry into the U.S. in H-1B Specialty Occupation nonimmigrant status without payment of a new $100,000 fee – subject to certain exceptions set forth in the Proclamation. USCIS has now provided a direct link for how to pay the fee required under the recent H-1B proclamation, confirming that USCIS is implementing the policy and providing a process for compliance. The latest USCIS guidance offers important clarification on when the $100,000 fee mandated by the presidential proclamation applies to H-1B petitions. While some questions remain unanswered, the new details provide greater insight into how different types of filings are affected.
When the $100,000 Fee Applies
- Consular Notification Petitions: Petitions that request consular notification—meaning the petition seeks to notify a U.S. consulate, port of entry, or pre-flight inspection of approval rather than requesting a change of status, extension of stay, or amendment—are subject to the $100,000 fee. This applies regardless of whether the foreign national is inside or outside the United States at the time of filing.
- Change of Status Requests: If a petition requests and is approved for a change of status, the fee does not apply. However, if the change of status is denied due to travel during adjudication or a status violation and the petition is only approvable for consular notification, USCIS will require payment of the $100,000 fee before approving the petition.
- Extension of Stay Requests: Petitions requesting and receiving approval for an extension of stay are not subject to the fee. However, if the extension is denied and the petition is only approvable for consular notification, the fee will apply with a possible exception for valid H-1B visa holders.
- Amended Petitions: Similarly, if an amendment to H-1B status is requested and approved, the fee does not apply. However, if the amendment is denied and the petition is only approvable for consular notification, the fee must be paid, unless the beneficiary holds a valid H-1B visa.
- Change of Employer Petitions: A change of employer petition is not subject to the fee if it includes and receives approval for an extension of stay. If the petition is filed for consular notification or only approvable as such, the fee will apply with a possible exemption for valid H-1B visa holders.
- Continuation of Employment with the Same Employer: Whether a petition for continued employment with the same employer is subject to the fee depends on the type of action requested. If the petition includes an extension of stay and that extension is approved, the fee does not apply. However, if the petition is filed for consular notification—or if an extension request is denied and the petition is only approvable for consular notification—the fee will apply, even for renewals filed by the same employer.
Impact of Travel After Petition Approval
If a foreign national departs the United States after their petition is approved without the fee being required, that departure does not trigger the fee retroactively.
Denied Petitions and Fee Refunds
According to the newly released online payment form, if an H-1B petition is denied, any $100,000 fee paid will be refunded.
New Guidance on Exceptions
USCIS has clarified that national interest exceptions to the $100,000 H-1B petition fee will be granted only in extraordinarily rare circumstances, requiring employers to meet four stringent criteria: (1) the foreign national’s presence in the United States as a foreign national worker must be in the national interest; (2) that no American worker is available to fill the role; (3) the individual does not pose a threat to the security or welfare of the United States; and (4) that requiring the petitioning employer to make the payment on the foreign national worker’s behalf would significantly undermine the interests of the United States. USCIS instructs petitioning employers who believe their foreign national worker satisfies this high threshold may seek an exception by sending their request and all supporting evidence to H1BExceptions@hq.dhs.gov.
Pending Litigation
Currently, two lawsuits are challenging the H-1B proclamation. The first case, Global Nurse Force v. Trump, was filed in the U.S. District Court for the Northern District of California by a coalition of nursing, academic, and religious organizations. The plaintiffs argue that the President exceeded his authority under the Immigration and Nationality Act and that the proclamation violates several provisions of the Administrative Procedure Act.
The second case, Chamber of Commerce of the United States v. U.S. Department of Homeland Security, was filed in the U.S. District Court for the District of Columbia by the Chamber of Commerce and the Association of American Universities on behalf of their members. This lawsuit claims that the proclamation unlawfully attempts to override federal laws governing the H-1B program, misuses the President’s statutory authority to suspend or restrict the entry of foreign nationals, and fails to provide adequate findings to justify that admitting H-1B nonimmigrants would harm U.S. interests.
It is expected that plaintiffs in one or both cases will seek a preliminary injunction or other temporary relief against the proclamation.
Developments continue to evolve, and Gunster’s Immigration Law Group is closely monitoring agency guidance and implementation.
Should you wish to receive timely updates and further information concerning these and other Immigration matters, please contact Gunster’s Immigration Law Practice.
This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
[1] See USCIS Guidance, H-1B Specialty Occupations | USCIS (October 20, 2025).
[2] See Presidential Proclamation, Restriction on Entry of Certain Nonimmigrant Workers – The White House (September 19, 2025).
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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