As discussed in prior posts, President Trump recently signed a proclamation restricting the entry of H1B nonimmigrant workers unless their petitions are accompanied by a new $100,000 fee. On October 20, 2025, USCIS issued additional guidance on the applicability of the fee to H-1B petitions.
Key takeaways from the guidance
According to this guidance, the following H-1B petitions filed on or after 12:01 am EDT on September 21, 2025 are subject to the fee:
Petitions for beneficiaries who are outside the United States and do not have a valid H-1B visa.
Petitions requesting consular notification, port of entry notification, or pre-flight inspection for a beneficiary in the United States.
Petitions requesting a change of status (COS), amendment, or extension of stay (EOS) where USCIS subsequently determines that the beneficiary is ineligible for that benefit.
According to the guidance, the following are NOT subject to the fee:
Previously issued and currently valid H-1B visas.
Petitions filed prior to 12:01 am EDT on September 21, 2025.
Holders of a current H-1B visa, or a beneficiary of an approved petition, seeking to travel in and out of the United States.
Petitions filed at or after 12:01 am EDT on September 21, 2025, that request an amendment, COS, or EOS for a beneficiary inside the United States where the beneficiary is granted that request. Such beneficiaries will not be subject to the fee if they subsequently depart the United States and apply for a visa based on the approved petition and/or seeks to reenter the United States on a current H-1B visa.
The guidance provides an email address where petitioners can apply to the Secretary of Homeland Security for an exception to the fee. The Secretary must determine that a particular worker’s presence in the United States 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 U.S. interests. The guidance also provides a pay.gov link where the $100,000 fee can be paid.
What this means for employers
USCIS’ guidance clarifies the applicability of the $100,000 fee, in that it appears to exempt future H-1B cap cases where the beneficiary is in the United States in another valid status on the filing date. It also exempts petitions requesting an amendment, COS, or EOS for a beneficiary inside the United States where that request is granted.
However, it also confirms that the fee will apply in scenarios where a petition cannot be approved for a COS, EOS, or amendment and must instead be approved for “consular notification.” This creates heightened risk for H-1B extensions filed close to expiration dates, when beneficiaries have gaps in lawful status, or when COS requests are denied. In such cases, the fee may be triggered.
From a compliance perspective, this places greater importance on early and timely filings, use of Premium Processing, and maintaining uninterrupted status, to avoid scenarios in which status cannot be granted within the United States. As always, foreign nationals should consult with counsel before making international travel plans.
While the guidance provides reassurance for most routine extensions and amendments filed on behalf of employees who remain in valid H-1B status, it also raises the stakes for late or complex filings, making proactive case management essential.
Chris Beckerson and Snigdha Ravulapati. © Jewell Stewart Pratt Beckerson & Carr PC 2025