New USCIS Guidance on $100,000 H-1B Fee Clarifies Who Is Covered

The $100,000 fee requirement for H-1B visas, which took effect on Sept. 21, primarily applies to new H-1B petitions filed on behalf of applicants who are outside the U.S. — a group that makes up a very small percentage of those who file for the professional worker visas. 

U.S. Citizenship and Immigration Services (USCIS) issued clarifying guidance on Oct. 20, addressing who is subject to the hefty fee, how and when payment must be submitted, and the criteria for requesting an exception. 

President Donald Trump issued a proclamation on Sept. 19 that introduced the six-figure fee for "new" petitions for H-1B visas, blindsiding employers and visa applicants, sparking confusion, and disrupting workforce planning. The latest guidance answers many of the questions causing uncertainty. 

HR Q&A: Key H-1B Changes Employers Must Know  

According to the guidance, the $100,000 fee applies to two categories of petitions: 

• H-1B petitions filed on or after Sept. 21 on behalf of H-1B workers who are outside the U.S. and do not have a valid visa. "The vast majority of people who obtain an H-1B visa are already in the U.S. in another status," said Andrew Wilson, an immigration attorney and partner at Lippes Mathias in Buffalo, N.Y. 
• Petitions filed by those seeking an amendment (material changes to the terms and conditions of employment), extension, or change of status from inside the U.S., and who are in need of consular notification. This is an uncommon occurrence, typically resulting from a denial of the petition or circumstances in which USCIS determines that the person is not in a valid status or is otherwise ineligible. "It is not that it never happens, but it is somewhat rare," Wilson said.   

USCIS stated that the fee does not apply to: 

• Petitions filed prior to Sept. 21. 
• Beneficiaries of previously issued and currently valid H-1B visas. 
• Petitions requesting an amendment, change of status, or extension of stay for a beneficiary inside the U.S., when USCIS subsequently grants that request. 

The bottom line is that anyone filing from within the U.S., which includes most petitioners, is exempt from the fee, including those who file for amendments, change of status, and extensions, if approved. Most amendments, extensions, and change of status requests are approved.  

"This new guidance walks back a lot from the original executive order," Wilson said. "It is a big relief for employers and clarifies a lot of questions."  

It's also a relief for cap-exempt employers, such as hospitals that are looking for critical talent like physicians and going from a J visa to an H-1B, he said.   

"The biggest takeaway for employers is that USCIS has clarified that the fee would not apply to a change of status, where people change from one category to another without leaving the country, such as moving from F-1 student status to H-1B status," said Stuart Anderson, executive director of the National Foundation for American Policy, a public-policy research organization based in Arlington, Va. 

This is important because the majority of H-1B beneficiaries file for a change of status from the F-1 visa as international students or recent graduates.  

Take note that pending change of status, amendment, and extension petitions carry a new travel risk. If an H-1B worker leaves the country while one of these petitions is pending, USCIS may find them ineligible for that benefit and convert the case into one that does require the $100,000 payment. 

Webinar: Navigating New H-1B Policy

How and When to Pay

USCIS also provided information on how to pay the $100,000 fee. The payment must be made prior to filing the petition using the instructions at pay.gov.  

Petitioners who are required to pay the fee must submit proof of payment or evidence of an exception at the time of filing the H-1B petition. If USCIS does not approve a petition, it will issue a full refund, the agency said.  

Exception Criteria

The latest guidance made clear that exceptions will be rare. The USCIS guidance on exceptions is more restrictive than the language of the proclamation. 

According to USCIS, exceptions to the $100,000 payment may be granted "in the extraordinarily rare circumstance" where it is determined that a particular H-1B worker’s presence in the U.S. is in the national interest, that no American worker is available to fill the role, and that the foreign national worker does not pose a threat to the security or welfare of the U.S.  

Petitioners may submit exception requests and all supporting evidence to H1BExceptions@hq.dhs.gov.  

Pending Legal Challenges 

Two federal lawsuits are currently contesting the legality of the visa entry fee. On Oct. 3, a coalition of labor unions, hospitals, schools, and religious organizations filed a federal lawsuit in the Northern District of California, challenging the executive action as unconstitutional and in violation of the Administrative Procedure Act. The plaintiffs argue that the fee exceeds presidential authority and jeopardizes essential workforce pipelines. 

The U.S. Chamber of Commerce filed a lawsuit on Oct. 16, contending that the fee imposes an undue financial burden on employers, undermines U.S. economic competitiveness, and could worsen labor shortages. Both lawsuits seek to halt the enforcement of the proclamation.  

"While SHRM understands the Trump administration's goal of protecting the American worker, we encourage them to consider unintended consequences that could create major barriers for employers — particularly small and midsized businesses," said Emily M. Dickens, chief of staff, head of government affairs, and corporate secretary at SHRM. "We urge the White House to work with stakeholders to strike the critical balance of protecting American workers while ensuring employers can access the critical skills our economy needs."