H-1B $100,000 Fee Limited to New H-1Bs Only: What Employers and Employees Should Know

On September 19, 2025, the President issued a proclamation suspending the adjudication of H-1B petitions for individuals outside the United States and barring their entry into the U.S. unless the employer pays a $100,000 fee per sponsored worker.

Subsequently, the administration clarified (CBP Memo and USCIS Memo) that the proclamation applies to H-1B petitions filed on or after September 21, 2025.      Further, they indicated that the proclamation only applies prospectively to new petitions that have not yet been filed and it does not impact H-1B workers who have approved petitions, petitions which are filed and currently pending as of September 21, 2025, or having a valid H-1B visa.

In an October 20, 2025 update, USCIS has provided additional clarifications which, while helpful. continue to contradict earlier guidance specifically with respect to H-1B petitions granted with “consular processing” for existing candidates (such as amendments, extensions, and others).  See below for details.

Effective Date

The proclamation takes effect September 21, 2025, at 12:01 a.m. (Eastern Time) and is scheduled to remain in place for 12 months, subject to extension.

Substance of the Ban and Fee

According to the CBP-issued clarification, the proclamation instructs USCIS and DOS to start requiring $100,000 payment for employers submitting petitions on behalf of prospective workers who are outside of the U.S. and for new H-1B petitions only.

There are still outstanding questions as to what is a “new” petition.   Does that include a new employment for someone who is already cap-exempt but is between jobs?   Or, does that only include first-time H-1B petitions for candidates who are going through the H-1B cap lottery.    More guidance is likely to be forthcoming to clarify further.

However, it is important to highlight again that the proclamation does not apply to existing H-1B petitions and visa holders.   This was a major concern and source of anxiety directly after the initial proclamation was released in the afternoon of September 19, 2025.

October 20, 2025 Clarification Suggests $100K Fee Applicable to Consular Processing H-1B Transfer/Amendment/Extension Petitions

In the October 20, 2025 clarification, USCIS essentially confirms that the proclamation does not apply to H-1B petitions (change of status, amendments, extensions) that are filed for candidates who are in the U.S.

However, they seem to deviate somewhat from prior guidance in saying that the $100,00 fee will apply to H-1B petitions, including change of status, amendments and extensions that seek consular processing for beneficiaries who are outside of the U.S. or (importantly!) when the H-1B petition seeks change or extension of status for a beneficiary who is in the U.S. but if USCIS determines that the candidate is not eligible for such grant of status (for example, due to being in violation of status or having exceeded their authorized period of stay).   Here’s the relevant part:

In addition, if a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, requests a change of status or amendment or extension of stay and USCIS determines that the alien is ineligible for a change of status or an amendment or extension of stay (e.g., is not in a valid nonimmigrant visa status or if the alien departs the United States prior to adjudication of a change of status request), the Proclamation will apply and the payment must be paid according to the instructions provided by USCIS.

First of all, this “clarification” conflicts prior indications by the administration that the proclamation will only apply for new “cap” petitions.   But this guidance suggests that there may be scenarios where existing H-1B holders may still find themselves subject to the $100,000 visa fee.

Examples:

1.  Candidate A has H-1B transfer filed by Company X.   While the application is under preparation or pending,  the candidate leaves the U.S. due to family emergency.  The H-1B transfer is approved with consular processing,  potentially making the visa subject to the $100,000 visa fee.
2. Candidate B loses their job and is only able to find a new position towards the end of the 60-day grace period.   Company Y files H-1B transfer but this is outside of the grace period.  The H-1B petition is approved with “consular processing”, potentially making the visa subject to the $100,000 visa fee.
3. Candidate C is in the U.S. on TPS.   An H-1B cap-exempt petition is filed by Non-Profit Z on behalf of Candidate C.   USCIS approves the cap-exempt petition but due to case specific nuances, does not grant change of status and instead approves the H-1B petition with “consular notification.”     The candidate is potentially subject to the $100,000 visa fee.

So, based on this October 20, 2025 guidance, there is a subset of H-1B petitions which were initially exempt from the visa fee but now appear to be subject to the $100,000 visa fee depending on the circumstances of the candidate’s status, international travel and the nature of the H-1B petition approval.    We recommend careful consideration of the circumstances of H-1B petitions where there is doubt with respect to maintenance of status and when there is possibility of international travel before or during the petition filing.

2025 H-1B Cap Approvals Not Impacted

The proclamation, as clarified by the memoranda, does not ban or require $100,000 fee for visa issuance or entry into the U.S. by new H-1B cap beneficiaries who have had their H-1B cap petition filed before September 21, 2025.

H-4 Family Members

Since the CBP memorandum clarified that the proclamation does not actually include a travel ban for H-1B workers, there is no travel restrictions for current H-4 dependent visa holders.

H-1B1 Chile/Singapore and H-1B Fashion Models

The proclamation does not apply to H-1B1 Chile/Singapore nationals seeking to enter the U.S. under separate legal provisions.    H-1B1 Chile/Singapore travelers should be prepared to explain that the H-1B1 Chile/Singapore visa category is distinct and separate from the H-1B specialty occupation category and, as a result, their H-1B1 Chile/Singapore category is not subject to the ban even for future petitions.

Similarly, H-1B Fashion models should be prepared to explain that they are not coming to the U.S. to perform “specialty occupation” work and are not subject to the proclamation even for future petitions.

Potential Restrictions on Alternative Visa Use

The proclamation directs the Secretary of State to curb the “abuse” of B visitor visas by H-1B workers who might attempt to enter on a B visa and later change status. The scope of these restrictions is unclear. While entry under a different visa category for a legitimate purpose may still be possible, such actions carry significant risk and could be construed as misrepresentation.

National Interest Exceptions

The proclamation authorizes the Secretary of Homeland Security to waive the $100,000 fee for individuals, companies, or industries deemed to serve the national interest.   Limited guidance is provided in the October 20, 2025 clarification:

Exceptions to the $100,000 payment are granted by the Secretary of Homeland Security in the extraordinarily rare circumstance where the Secretary has determined that a particular alien worker’s presence in the United States as an H-1B worker is in the national interest, that no American worker is available to fill the role, that the alien worker does not pose a threat to the security or welfare of the United States, and that requiring the petitioning employer to make the payment on the alien’s behalf would significantly undermine the interests of the United States. Petitioning employers who believe their alien worker satisfies this high threshold may seek an exception by sending their request and all supporting evidence to H1BExceptions@nullhq.dhs.gov.

Fee Payment Process

Petitioners should submit the required $100,000 payment using pay.gov, following the instructions on pay.gov at the following link.

$100,000 H-1B Visa Fee Scenarios

Based on the information available as of the date this article was last updated, this is a summary of the scenarios and whether expect the $100,000 H-1B visa fee to apply.

Conclusion 

The proclamation’s timing and ambiguity, combined with an initial lack of guidance, and the subsequent clarification memoranda (which itself seems to contradict the proclamation) made for a challenging period of 24 hours following the proclamation.   However, with clarifying memoranda being issued, the outlines of the ban and the visa fee have become much clearer.

We will  continue to closely monitor developments and will provide updates as soon as additional guidance and news becomes available. Employers and individuals with urgent concerns are encouraged to contact us directly. To stay informed, please subscribe to our free weekly newsletter.