USCIS finally provides some clarity on $100K H-1B Proclamation Fee

On October 20, the U.S. Citizenship and Immigration Services issued informal guidance related to the $100,000 H-1B petition fee imposed by Presidential Proclamation on Restriction on Entry of Certain Nonimmigrant Workers issued on September 19.

The guidance provides some clarity regarding who is and is not subject to the new filing fee, how to make the payment, and where to file a national interest exception. There are several key questions that remain outstanding, which we will continue to follow.

Petitions subject to the $100K fee

The guidance clarified that the one-time fee applies to the following, if filed on or after September 21, 2025:

• New petitions filed “on behalf of beneficiaries who are outside the United States and do not have a valid H-1B visa.” This will include first-time filings related to the coming 2026 lottery.
• New petitions that request “consular notification, port of entry notification, or pre-flight inspection for an alien in the United States.”
• New petitions for change of status, amendment, or extension where the USCIS has determined that the individual is not eligible for the request (for example, because the individual is not in valid non-immigrant status, or departs the United States before adjudication).

Petitions not subject to the $100K fee

• Any petition filed before September 21, 2025.
• Any petition filed before September 21 where a beneficiary already holds a valid H-1B visa, or will apply for a visa based on an approved petition that was filed before September 21 (even if approved afterward).
• Any new petition filed on or after September 21 requesting an amendment, change of status, or extension of stay for a beneficiary who is physically present in the United States when the USCIS approves the request. This includes the coming 2026 lottery filings.

It is important to note that if a petition to change or extend status is approved and the beneficiary later departs the United States to apply for a visa based on that approval, or re-enters on an existing H-1B visa, the fee will not apply.

When and how to pay

Payment must be made before the petition is filed, and proof of payment is required when the petition is filed. In addition, evidence of payment may be required when applying for a visa at the U.S. consulate or embassy, or at the port of entry. Payment can be made here. 

Petitions that require the fee but are filed without proof of payment (or evidence of a national interest exception issued by the U.S. Department of Homeland Security) will be denied, not rejected. This is important to note because the standard H-1B filing fees will not be refunded. (The fees are $2,000-$3,000, depending on the size of the employer, and do not include the optional premium processing fee of $2,805.)

National interest exceptions

The USCIS guidance says that exceptions to the fee requirement are “extraordinarily rare,” and will be granted only if the Secretary of Homeland Security determines that (1) the presence of the H-1B worker is in the national interest; (2) no U.S. worker is available to fill that individual’s role; (3) the H-1B worker is not a threat to the “security or welfare of the United States”; and (4) imposing the fee “would significantly undermine the interests of the United States.”

Notably, the original Proclamation did not require a showing that no U.S. worker was available to fill the role. This new condition appears to have been introduced by the USCIS.

The guidance does not address how the DHS Secretary will evaluate requests when “all aliens working for a company” or “all aliens working for an industry” is deemed to be in the national interest. For example, health care workers, including physicians, dentists, nurses, and other support workers who are hired to work in Healthcare Professional Shortage Areas or Medically Underserved Areas as designated by the U.S. Department of Health and Human Services are often considered to be working in the national interest. It is not clear whether groups like this will receive a blanket federal designation or whether individual exception requests will be required.

Finally, the USCIS has not indicated what the processing time or the legal standard of review for these requests will be.         

Petitioning employers may submit their requests to H1BExceptions@hq.dhs.gov.

Pending legal challenges

Two lawsuits have been filed thus far challenging the legality of the Proclamation:

• United Auto Workers et al. v. Trump (N.D. Cal., filed Oct. 3, 2025), which argues that the Proclamation unlawfully bypasses statutory and rule-making procedures.
• U.S. Chamber of Commerce v. U.S. Department of Homeland Security (D.D.C., filed Oct. 16, 2025), which contends that the Proclamation exceeds executive authority and disrupts the visa framework established by Congress.

At this time, no court has issued an injunction or order halting implementation of the Proclamation. The fee requirement therefore remains in effect, and the USCIS continues to process H-1B petitions in accordance with the Proclamation and its October 20 guidance.

We will continue to track both the legal challenges and further agency updates and will provide additional information as it becomes available.