What Employers Need to Know About the $100K H-1B Visa Fee

The federal government has released additional clarification on the $100,000 H-1B Proclamation Fee. On October 20, 2025, USCIS updated its website with the most comprehensive guidance to date, offering direction on when the fee applies, how it must be paid, and what remains uncertain. The update provides important information for employers and foreign professionals navigating H-1B filings in the months ahead.

When the Fee Applies

Under the new guidance, the fee is required for any H-1B petition filed after 12:01 a.m. EDT on September 21, 2025, if specific conditions are met. USCIS has confirmed that the fee applies when:

• The foreign national is outside the United States and does not hold a valid H-1B visa;
• The petitioner selected consular notification on the I-129; or
• USCIS approves the petition but denies the beneficiary’s change or extension of status, or the beneficiary departs the United States while the petition remains pending.

In these scenarios, petitioners must account for the additional cost and procedural requirements before submitting the filing.

When the Fee Does Not Apply

USCIS has also outlined several clear exemptions. The fee is not required for:

• Petitions filed before 12:01 a.m. EDT on September 21, 2025;
• Petitions requesting and receiving a change of status, extension of status, or amendment;
• Visa applications filed overseas based on an H-1B petition approved as a change or extension of status or amendment; or
• Admissions based on a newly issued visa linked to an approved change or extension of status, or pursuant to a current valid H-1B visa.

The scope of the exemption tied to a current valid H-1B visa remains unclear, and additional clarification from USCIS is anticipated.

How to Pay the $100,000 Fee

Petitioners required to pay the fee must submit the payment through pay.gov before filing the petition. USCIS has emphasized the importance of accurate passport information: the data entered at payment must match the passport the beneficiary presents at admission.

Petitions submitted without proof of payment or without evidence supporting a national interest exception will be denied. Some petitioners have begun receiving Requests for Evidence asking for confirmation of payment as a condition of eligibility. USCIS has confirmed that petitioners will be refunded through pay.gov if a petition is ultimately denied.

Questions regarding the payment system may be directed to the DHS email address listed in the USCIS notice.

National Interest Exceptions

The proclamation allows for extremely limited exceptions when the Secretary of Homeland Security determines that a particular H-1B worker’s presence in the United States is in the national interest. Requests must be emailed with supporting evidence and must demonstrate that:

• The beneficiary’s presence serves the national interest;
• No available U.S. worker can perform the job;
• Requiring the employer to pay the fee would significantly harm U.S. interests; and
• The beneficiary poses no security or welfare concern.

At this time, USCIS has not issued guidance on what evidence is required to show the absence of available U.S. workers or how adjudicators will evaluate these requests. It is also unknown whether factors like labor market shortages or high unemployment rates in specific regions will influence decisions.

Pending Litigation

To challenge this executive order, a coalition of health care providers, nonprofits, labor unions, and schools, including the Colorado educational group Global Village Academy Collaborative (GVAC), filed Global Nurse Force v. Noem in October in the Northern District of California.

IMMPact Litigation, the Justice Action Center, Democracy Forward, and the South Asian American Justice Collaborative have also filed suit against the H1-B visa fee.

Open Questions and Areas Needing Clarification

While the updated guidance is helpful, important gaps remain. USCIS has not addressed:

• Whether an individual with a valid H-1B visa is exempt from future petitions filed during the visa’s validity, including those requesting consular processing;
• Whether industry-wide or company-wide exceptions might be recognized, despite earlier public statements from the administration suggesting broader exemptions could be possible;
• Expected processing timeframes for national interest exception requests or whether expedited review will be available; and
• Who within DHS is reviewing exception requests and what training or criteria are being used.

This is a rapidly developing situation, and we’ll continue monitoring it closely. As soon as there are meaningful updates, we’ll bring them to your attention.

Questions? Please reach out to Fennemore Immigration Attorney Alycia Moss at amoss@fennemorelaw.com for more information about our Immigration Law practice and guidance tailored to your specific situation.

This client alert is for general educational purposes only and does not constitute legal advice. If legal advice is needed, please consult with an attorney.