USCIS Provides New Guidance on $100,000 H-1B Fee

Yesterday, October 20, 2025, the United States Citizenship and Immigration Services (USCIS) provided new guidance on the implementation of the $100,000 H-1B fee, which was imposed by Presidential Proclamation on September 19, 2025. The guidance clarifies how employers may pay the new fee, and provides the criteria for requesting a national interest exception. The guidance also clarifies that the Proclamation will not apply to H-1B change of status, or amendment petition filings. However, the guidance does not explicitly address how the Proclamation will apply to H-1B change of employer (“transfer”) petitions.

Background

On September 19, 2025, President Trump imposed a $100,000 fee for ‘new’ H-1B petitions where the beneficiary is outside the US, or would be seeking to reenter the US. Neither the Proclamation itself nor the guidance issued shortly after its publication provided details necessary for the Proclamation’s implementation, including how employers could actually pay the fee. The USCIS guidance issued yesterday provides clarification on some but not all aspects of the new fee requirement.

How and When to Pay the $100,000 Fee

The new guidance clarifies that the fee must be paid through the government’s pay.gov portal with a form created specifically for the purpose. The guidance also clarifies that payment must be made prior to filing a petition that is subject to the fee, and that proof of payment must be submitted with the petition. If such proof is not submitted, the petition will be denied.

Criteria for National Interest Exception

The USCIS’ guidance clarifies that exceptions to the fee will only be provided in ‘rare’ circumstances where the Secretary of Homeland Security has determined that a particular H-1B worker’s presence in the United States is in the national interest. To meet this standard, the following three criteria must be met:

• No American worker is available to fill the role,

• The foreign worker does not pose a threat to the security or welfare of the United States; and

• Requiring the petitioning employer to make the payment on the worker's behalf would significantly undermine the interests of the United States.

The guidance instructs employers to submit the request for exception and all supporting evidence to H1BExceptions@hq.dhs.gov.

Clarification on Which Petitions are Subject to the Proclamation

The language of the Proclamation itself is clear in stating that it only applies to persons who are outside the US, or who seek to reenter the country after the Proclamation’s effective date of September 21, 2025. Previous guidance from the USCIS clarified that the Proclamation would not apply to petitions filed prior to the effective date, and to H-1B extensions of stay filed with the same employer. The new guidance issued yesterday attempts to provide further clarification by stating that it will not apply to amendments, or change of status petition filings. However, the guidance fails to explicitly address H-1B change of employer petitions. It is still not entirely clear whether a person who is the beneficiary of a change of employer petition in the US, who later travels abroad to renew their visa, will be subject to the $100,000 fee when seeking to reenter.

What this Means for Our Clients

The recent USCIS guidance provides clear instructions on how to pay the $100,000 fee, and the criteria for requesting a national interest exception to the fee. More importantly, the guidance clarifies that the fee does not apply to change of status situations, meaning that the vast majority of F1 students selected in next year’s H-1B lottery will not be affected. While it appears from the guidance that H-1B change of employer petitions for workers in the US will also not be subject to the fee, this is not explicitly stated.

The criteria for the national interest exception announced in yesterday’s guidance is much stricter than many observers expected and is indeed more restrictive than suggested in the text of the Proclamation itself, which mentions the possibility of blanket exceptions for certain industries and/or employers. No such broad exceptions are mentioned in the guidance.

Because the guidance is still not entirely clear on whether it applies to change of employers filed after the effective date who do not have a valid visa stamp in their passport, we continue to recommend that beneficiaries of such petitions avoid traveling internationally for the time being. 

It should be emphasized that the impact of the Proclamation is largely negligible at present due to the government shutdown. As the Department of Labor has ceased processing  Labor Condition Applications (LCAs) during the shutdown, employers are unable to submit new H-1B petitions (unless an LCA was obtained before the shutdown). We believe that there is a significant chance that a federal court will enjoin the Proclamation by the time shutdown is over, which would make yesterday’s guidance moot, at least temporarily.