On October 20, 2025, one month after issuance of the Presidential Proclamation (“Restriction on Entry of Certain Nonimmigrant Workers”) which imposed a $100,000 fee on certain H-1B petitions filed after September 21, 2025, U.S. Citizenship and Immigration Services (USCIS) has finally posted some clarification on the application of this Proclamation. USCIS’s update (https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations) specifically addresses who is subject to the $100,000 fee, how and when to pay the $100,000 fee, and the threshold criteria for an exemption from payment of the fee. The following is a summary of the USCIS update:
$100,000 REQUIREMENT DOES NOT APPLY TO THE FOLLOWING:
- Any H-1B petitions filed prior to September 21, 2025
- H-1B petitions filed on or after September 21, 2025 requesting an amendment, change of status, or extension of status for an individual already in the United States if the amendment, change, or extension is granted. The USCIS update does not specifically address whether petitions for change of employer (COE) are exempt but given that requests for extension of status are exempted and COE petitions usually also involve requests to extend status, COE petitions should also be exempt.
- Assuming the H-1B petitions are approved under these circumstances, then beneficiaries of these petitions will not be subject to the fee if they later depart the U.S. and apply for an H-1B visa or admission in H-1B status.
$100,000 FEE APPLIES TO THE FOLLOWING SITUATIONS:
- New H-1B petitions filed on or after September 21, 2025 for foreign nationals who are outside the United States and do not have a valid H-1B visa.
- New H-1B petitions requesting consular notification, port of entry notification, or pre-flight inspection for a foreign national in the U.S.
- If the foreign national is in the United States in a nonimmigrant status when the H-1B petition is filed, but USCIS denies the request for change of status to H-1B, then the employer must pay the $100,000 fee for the foreign national to apply for an H-1B visa at a U.S. embassy or consulate overseas or to seek admission to the U.S. in H-1B status. Accordingly, requests for change of status should be carefully evaluated for eligibility
EXEMPTIONS TO THE $100,000 FEE PAYMENT:
Given the information provided to date, ACWIA/cap-exempt employers (such as non-profit institutions of higher education, governmental and non-profit research organizations) are not exempt from the fee.
USCIS has also described the requirements and process for an employer to obtain a national interest exemption from the $100,000 fee, stating that an exemption may be granted at the discretion of the Secretary of Homeland Security only in an “extraordinarily rare circumstance.” To seek an exemption, the employer must provide evidence that the foreign national’s presence in the U.S. is in the national interest, there is no U.S. worker available for the job, the individual is not a threat to the security or welfare of the U.S., and requiring the employer to make the payment would undermine the interest of the U.S. Requests with supporting evidence should be sent to H1BExceptions@hq.dhs.gov but there is no indication about processing time for such requests.
It should also be noted that the USCIS’s requirements for a national interest exemption differ than what was initially reflected in the Proclamation, which allows for collective exemptions based by industry or company, and reflects a lower legal threshold for exemptions. The Proclamation states: “(c) The restriction imposed pursuant to subsections (a) and (b) of this section shall not apply to any individual alien, all aliens working for a company, or all aliens work 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 national security or welfare of the United States.”
FEE PAYMENT:
If applicable, the $100,000 payment must be made online using a bank account (ACH) transfer to the U.S. Treasury prior to filing a petition with the USCIS. The online payment form states that, if the application is not approved, a “full refund will be processed.” Since the employer files an H-1B petition (not an application), this clause may only apply to the foreign national’s visa application, but it is not clear. There is no direction as to when the payment must be made if a requested change of status is denied.
LITIGATION CHALLENGING THE PRESIDENTIAL PROCLAMATION:
As of the date of this news alert, two lawsuits have been filed in federal court to challenge the legality of this fee payment imposed by the Proclamation. The first lawsuit, Global Nurse Force v. Trump, was filed in the U.S. District Court for the Northern District of California by a diverse group of employers seeking to block the fee, including healthcare recruiters/employers, churches, and faculty and union organizations. More recently, the U.S. Chamber of Commerce filed suit in the U.S. District Court for the District of Columbia, arguing that the new $100,000 fee is unlawful, exceeds what is permitted, and will harm American businesses.
RECOMMENDATION:
We continue to recommend that foreign nationals in the U.S. be cautious about making any plans to travel outside of the U.S., especially if they need to apply for an H-1B visa. The Proclamation has thus far been implemented through a variety of guidance and memoranda that are subject to change without notice and lack clarity on some points. The formal rulemaking and regulatory process have not been used. Additionally, if the current U.S. government shutdown continues, non-emergency services at consular posts may be reduced or become unavailable. Given the potential for delays, foreign national employees’ travel plans should be flexible and undertaken only after consultation with the employer and attorney.
We will continue to monitor government communications and court actions and provide additional updates as required