Employment & Labor Insider

Last week, the Trump Administration issued a new proclamation extending the existing (but currently paused) $100,000 payment for certain H-1B petitioners through September 21, 2027.

This is in addition to a proposed rule issued last month by the U.S. Department of Homeland Security that would create a $103,265 filing fee for all cap-subject H-1B petitions. (The DHS published a correction to the proposed rule on September 10.)

Tomorrow is the last day to submit comments on the proposed rule.

The $100,000 payment and the $103,265 proposed fee are different. The payment applies to entry from outside the United States and certain petitions used to make that entry possible. The proposed fee, if adopted, would apply to the filing of cap-subject H-1B petitions, regardless of whether the worker is inside or outside the United States.

Renewal of the $100K payment (which never took effect)

The $100,000 payment was imposed in 2025 and was scheduled to expire this past Monday. Last week’s proclamation extended the payment for another 12 months, until midnight Eastern Time on September 21, 2027, unless it is extended again.

Under the 2025 and the current proclamation, certain H-1B workers would be required to remit a payment of $100,000. The Secretary of Homeland Security has the discretion to grant national-interest exceptions for individual workers, all workers employed by a particular company, or all workers in a particular industry.

The current proclamation does make the “entry” focus more explicit than its predecessor did. The current version makes clear that the restriction applies to workers who must seek admission to the United States for petition approval. This could include through consular notification, notification at a port of entry, pre-flight inspection, or preclearance.

The clarification is important because it more directly connects the payment to cases in which admission to the United States is necessary to activate the approved H-1B employment.

In addition, the current version does not repeat the 2025 directions concerning B-visa guidance, prevailing-wage rulemaking, or a wage-weighted H-1B selection process.

As under the 2025 proclamation, the agencies must make a recommendation after the next H-1B lottery about whether the entry restriction should be extended again.

This payment has yet to be collected. In June 2026, a federal court in Massachusetts vacated DHS and U.S. Department of State actions implementing the 2025 proclamation. In July, the U.S. Court of Appeals for the First Circuit denied the government's request to stay that ruling while the appeal proceeds. The U.S. Citizenship and Immigration Services has said that it will comply with the court's order, although it plans to collect the payment if the order is later lifted.

The 2026 proclamation does not explain the effect of the First Circuit order on the “renewed” payment.

Until guidance is issued, employers should not assume either that the payment process is restored, or that the litigation related to the 2025 proclamation has become irrelevant.

At this time, we do not know how USCIS will handle H-1B petitions that were filed while the 2025 payment requirement was vacated.

Employers considering petitions (or with pending petitions) that involve consular processing or a worker outside the United States should obtain case-specific advice before filing and before international travel.

The proposed $103,625 fee (cap-subject H-1B petitions)

The $103,625 fee is separate from the $100,000 proclamations. The DHS has said that it is relying on different statutory authority and is proposing the fee through notice-and-comment rulemaking.

The proposed rule, if adopted, would amend the USCIS fee regulation and require an additional payment of $103,265 when an employer files any cap-subject H-1B petition, including a petition under the U.S. advanced-degree exemption.

Unlike the proclamations, the proposed fee is not tied to the worker's location, consular processing, travel, or admission. If finalized as proposed, it would apply to cap-subject petitions whether the beneficiary is abroad or changing status from inside the United States. The DHS also proposes to apply it uniformly to small employers and nonprofit employers who file cap-subject petitions.

Filing fees for a typical cap-subject H-1B petition currently total approximately $2,225 for an employer with 25 or fewer employees, and $3,595 for a larger employer, plus the optional $2,965 premium processing fee. The proposed $103,265 fee would be charged in addition to these existing fees, not instead of them. The $4,000 fee that applies to certain H-1B- and L-1-heavy employers can increase the total further.

The proposed fee would not apply to H-1B petitions that are exempt from the annual cap. This is welcome news for universities and affiliated nonprofits, nonprofit and governmental research organizations, certain health care employers using cap-exempt strategies, and employers filing extensions or changes of employer for workers who have already been counted against the cap.

In arriving at the $103,265 figure, the DHS started with approximately $8.78 billion in projected annual government costs that it decided should be recovered from cap-subject H-1B employers. It then divided that amount by an assumed 85,000 fee-paying petitions. The calculation produced $103,264.57, which DHS rounded to $103,265.

Once the comment period closes (tomorrow), the DHS will review the public comments and issue a final rule before it imposes the fee.

If the $103,265 fee is adopted, can it and the $100K payment apply to the same case?

Yes.

A cap-subject petition for a worker outside the United States could be subject to both: The $103,265 fee because the petition is cap-subject, and the $100,000 payment because the worker needs admission to the United States to begin H-1B employment. The proposed rule says that the $103,265 fee would be imposed in addition to all other applicable fees or payments.

By contrast, a cap-exempt petition involving a worker who is abroad could be subject to the $100,000 fee but not the $103,265 fee.

And a cap-subject change-of-status petition for a worker who remains in the United States could be subject to the $103,265 fee but not the $100,000 fee.

What to do now

Employers should begin now to identify H-1B petitions that have been filed since the First Circuit decision as well as any pending requests for waiver of the national interest exception fee. Filing records, proof of submission, and agency correspondence should be preserved and monitored.

For each H-1B petition, employers should review the worker's location, the petition's cap status, and anticipated travel before deciding which, if either, measure may affect a particular filing.

Constangy’s Immigration Practice Group will continue to monitor and provide updates on the litigation, agency guidance, and rulemaking.