IMPORTANT UPDATE: USCIS Provides Further Clarification on $100,000 New H-1B Fee
Yesterday, the US Citizenship and Immigration Services (“USCIS”) and US Customs and Border Protection (“CBP”) published ‘FAQs’ intending to provide further clarification on the Trump Administration’s Proclamation imposing a new $100,000 H-1B fee, which was published last Friday evening. The FAQs confirm that the fee will not be required for H-1B petitions filed prior to Sunday, September 21, 2025, including FY2026 H-1B cap petitions. The FAQs also appear to confirm that the fee will not apply to extensions of stay with the same employer, even if these petitions were filed after this effective date. This means that the vast majority of H-1B workers will not be impacted by the Proclamation. However, due to the imprecise language used in the FAQ, it is still not entirely clear whether the Proclamation applies to new non-cap petitions filed after the effective date, where the beneficiary is outside the United States, or will be seeking to reenter the United States. For the time being, until we have further clarification from the administration, or a court injunction blocking the Proclamation, we are recommending that persons in H-1B status avoid international travel unless they will be reentering the United States pursuant to an H-1B petition that was filed before September 21, 2025. If this applies to you, and you have imminent emergency travel, please contact the attorney you regularly work with at our firm.
We have provided background on the Proclamation and a chart explaining how we expect that it will apply in different situations below. We will also be sending an invitation to a series of webinars on this topic that will be scheduled later in the week.
We emphasize that the Administration's immigration policies and its interpretation of existing policies are evolving rapidly, and are subject to change with little or no advance notice. We will continue to provide our guidance as quickly as possible through our alerts.
| Petition Type | Petition Filing Date | Does $100,000 H-1B Fee Apply? |
|---|---|---|
| FY2026 Cap Petition (March 2025 lottery season) | Before Sept. 21, 2025 | No |
| H-1B Extension of Stay with Same Employer | Before Sept. 21, 2025 | No |
| H-1B Change of Employer (‘Transfer’) | Before Sept. 21, 2025 | No |
| H-1B new petition for person who is outside of the US (consular processing), and previously held H-1B | Before Sept. 21, 2025 | No |
| H-1B Extension of Stay (‘renewal’) with Same Employer | Sept. 21, 2025 or later | No |
| H-1B Change of Employer (‘Transfer’) | Sept. 21, 2025 or later | No, if inside the US, and not traveling internationally. If traveling abroad and seeking to reenter, guidance from USCIS is still not clear. |
| H-1B new petition for person who is outside the US (consular processing), and previously held H-1B | Sept. 21, 2025 or later | Still not clear from USCIS guidance |
| H-1B new consular petition for person who is inside the US, and previously held H-1B | Sept. 21, 2025 or later | Still not clear from USCIS guidance |
| FY2027 Cap petition (March/Feb. 2026 filing season) | Sept. 21, 2025 or later | Yes, if outside the US when petition is filed, or leaving after the petition is filed (April 2026 or later) |
Background
On Friday afternoon, September 19, 2025, President Trump issued a Presidential Proclamation imposing a new $100,000 fee for ‘new’ H-1B petitions, to take effect on Sunday at 12:01AM ET, September 21, 2025. Due to the ambiguous wording of the Proclamation, and statements made by Secretary of Commerce Howard Lutnick during the signature ceremony, it was widely believed that the new fee requirement would apply to all H-1B petitions for persons seeking to reenter the United States as of the effective date.
On Saturday, through a series of tweets and a short USCIS memo, the Trump Administration sought to clarify the scope of the Proclamation. White House Press Secretary, Karoline Leavitt stated that the new fee would not apply to “anyone who has a current visa”, and would only apply to “future applicants in the February lottery who are currently outside the U.S.” However, on Sunday, the USCIS issued a new FAQ memo, suggesting that the scope of the Proclamation is broader than what the Press Secretary stated the day before. According to the new memo, the Proclamation “Requires a $100,000 payment to accompany any new H-1B visa petitions submitted after 12:01 a.m. eastern daylight time on Sept. 21, 2025. This includes the 2026 lottery, and any other H-1B petitions submitted after 12:01 a.m. eastern daylight time on Sept. 21, 2025.” As of this writing, it is unclear whether the new fee will apply to non-cap H-1B petitions filed on or after the September 21, 2025 effective date for persons who are outside the US, or will be outside the US and seeking to reenter. As noted in our previous alerts, we believe that it is likely that the Proclamation will be enjoined by a Federal Court in the coming days.
At A Glance
Main Update:
USCIS and CBP published FAQs clarifying Trump's new $100,000 H-1B fee proclamation
Who is NOT affected by the fee:
H-1B petitions filed before Sunday, September 21, 2025 (including FY2026 cap petitions)
Extensions of stay with the same employer (even if filed after the effective date)
Bottom line: The vast majority of H-1B workers won't be impacted
Remaining uncertainty:
Unclear language about whether the fee applies to new non-cap petitions filed after September 21, 2025, where the beneficiary is outside the US or seeking reentry
Critical Travel Warning:
H-1B holders should avoid international travel unless reentering under a petition filed before September 21, 2025
This is a precautionary measure until there's either:
Further clarification from the administration, OR
A court injunction blocking the Proclamation
Action item:
If you're in H-1B status with imminent emergency travel needs, contact your attorney at the firm immediately