Immigration Service Issues Guidance On Who Pays The $100,000 H-1B Fee

U.S. Citizenship and Immigration Services has issued new guidance on who pays the $100,000 H-1B fee, paying the fee and how to apply for an exception. The immigration fee was contained in a September 19, 2025, presidential proclamation. In which situations the fee applies has confused many employers because previous guidance from federal agencies failed to answer many questions. The U.S. Chamber of Commerce filed a lawsuit against the H-1B fee on October 16, 2026, which followed an earlier lawsuit from a diverse group of plaintiffs filed on October 3, 2025.

H-1B temporary visas are often the only practical way for a high-skilled foreign national to work in the United States long term. When companies recruit at U.S. universities, they find that international students account for 73% of full-time graduate students in electrical and computer engineering. The H-1B annual limit is 65,000, with a 20,000 exemption for individuals with a master’s degree or higher from a U.S. university. In addition to government fees that can exceed $6,000, employers must pay the higher of the actual or prevailing wage paid to U.S. professionals with similar experience and qualifications.

Immigration Service Guidance On The $100,000 H-1B Fee

The presidential proclamation issued on September 19, 2025, imposing a $100,000 fee on H-1B visa holders has been controversial and raised many questions for employers. USCIS has attempted to answer at least some questions on the $100,000 fee in guidance released on October 20, 2025. “The Proclamation applies to new H-1B petitions filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, on behalf of beneficiaries who are outside the United States and do not have a valid H-1B visa,” according to USCIS. “The Proclamation also applies if a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, requests consular notification, port of entry notification, or pre-flight inspection for an alien in the United States.”

The biggest takeaway for employers is that USCIS has clarified that the fee would not apply to a “change of status,” i.e., cases where people change from one category to another without leaving the country, such as moving from F-1 student status to H-1B status.

“It says the fee only applies to cases filed for people outside the United States, so they can come in,” said Dan Berger of Green & Spiegel in an interview. “Employers were nervous about doing change of status because the $100k might apply if they travel.”

The guidance explicitly states, “The Proclamation also does not apply to a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, that is requesting an amendment, change of status, or extension of stay for an alien inside the United States where the alien is granted such amendment, change, or extension. Further, an alien beneficiary of such petition will not be considered to be subject to the payment if he or she subsequently departs the United States and applies for a visa based on the approved petition and/or seeks to reenter the United States on a current H-1B visa.”

However, the guidance also states that an employer would need to pay the fee if USCIS determines, such as by denying an application, that an individual is ineligible for a change of status or an extension of stay. For example, USCIS states the H-1B fee would apply if the individual “is not in a valid nonimmigrant visa status or if the alien departs the United States prior to adjudication of a change of status request.”

USCIS states that any holder of a current H-1B visa, or any alien beneficiary following petition approval, can travel in and out of the United States. According to USCIS, “The Proclamation does not apply to any previously issued and currently valid H-1B visas, or any petitions submitted prior to 12:01 a.m. eastern daylight time on September 21, 2025.”

Immigration Service Provides Information On Paying The $100,000 H-1B Fee And Applying For An Exception

For the first time, USCIS has provided information on how to pay the $100,000 fee. “Petitioners should submit the required $100,000 payment using pay.gov, following the instructions on pay.gov at the following link: https://www.pay.gov/public/form/start/1772005176.” After clicking on the link, it states, “Use this form to pay your H-1B VISA PAYMENT TO REMOVE RESTRICTION.”

Many employers hope it may be possible to gain an exception from the fee to file H-1B visas for individuals located outside the United States. According to the section of the presidential proclamation addressing an exception, “The restriction imposed . . . shall not apply to any individual alien, all aliens working for a company, or all aliens working in an industry, if the Secretary of Homeland Security determines, in the Secretary’s discretion, that the hiring of such aliens to be employed as H-1B specialty occupation workers is in the national interest and does not pose a threat to the security or welfare of the United States.”

The USCIS guidance appears more restrictive and less welcoming than the language of the proclamation. The USCIS guidance inserts words or phrases that do not appear in the proclamation, including “extraordinarily rare,” “high threshold,” “significantly undermine” and “no American worker is available to fill the role.” (See below.)

According to USCIS, “Exceptions to the $100,000 payment are granted by the Secretary of Homeland Security in the extraordinarily rare circumstance where the Secretary has determined that a particular alien worker’s presence in the United States as an H-1B worker is in the national interest, that no American worker is available to fill the role, that the alien worker does not pose a threat to the security or welfare of the United States, and that requiring the petitioning employer to make the payment on the alien’s behalf would significantly undermine the interests of the United States.”

USCIS adds, “Petitioning employers who believe their alien worker satisfies this high threshold may seek an exception by sending their request and all supporting evidence to [email protected].”

While the new immigration guidance provided by USCIS will answer some questions posed by employers, it is unlikely to make them view the $100,000 H-1B fee more favorably.