USCIS Clarifies Who Must Pay the New $100,000 H-1B Visa Fee and Who Is Exempt

WASHINGTON D.C. – The U.S. Citizenship and Immigration Services (USCIS) has released crucial updated guidance clarifying the implementation of the new $100,000 H-1B visa fee, a measure introduced by a recent presidential proclamation. The detailed guidance aims to resolve widespread confusion among employers and foreign professionals regarding who is subject to this substantial new financial burden, which became effective on September 21, 2025.

The presidential proclamation, issued on September 19, 2025, imposed the hefty fee on certain H-1B visa petitions as part of an initial step to reform the H-1B nonimmigrant visa program. USCIS’s subsequent directives, released just ahead of the effective date, draw a sharp line between new petitions filed for beneficiaries abroad and those already in the U.S. seeking an extension or change of status.

Who Must Pay the $100,000 Fee?

The USCIS clarification explicitly states that the $100,000 fee applies only to a narrowly defined set of applications:

• New H-1B Petitions for Beneficiaries Outside the U.S.: The fee is mandatory for any new H-1B petition filed on or after 12:01 a.m. Eastern Daylight Time on September 21, 2025, for a foreign national currently outside the United States who does not possess a valid H-1B visa.
• Petitions Requiring Notification for Entry: The fee also applies to new petitions filed on or after the effective date that request consular notification, port-of-entry notification, or pre-flight inspection, including for beneficiaries who may be physically in the U.S. at the time of filing but require one of these notifications.

For employers submitting a petition that falls under these categories, they must include proof of the $100,000 payment through the government’s online payment portal, pay.gov, using the designated form labeled “H-1B VISA PAYMENT TO REMOVE RESTRICTION,” or provide evidence of an approved exception. Petitions lacking this mandatory documentation will be denied.

Key Exemptions: Who is Not Affected?

The updated guidance provides significant relief for many professionals and U.S. employers, explicitly stating that the fee does not apply to:

• Individuals Already in the U.S. Seeking Status Change or Extension: The fee is not required for petitions requesting an amendment, change of status (such as an F-1 student transitioning to H-1B), or an extension of stay for an individual who is already inside the United States and is granted the change, amendment, or extension. This exemption particularly benefits international students graduating from U.S. universities.
• Existing H-1B Visa Holders: The proclamation does not affect any previously issued and currently valid H-1B visas, nor does it impact the ability of current H-1B holders to travel in and out of the U.S.
• Petitions Filed Before the Effective Date: Any H-1B petition submitted prior to 12:01 a.m. Eastern Daylight Time on September 21, 2025, is exempt.

However, USCIS warns that if a change of status or extension of stay petition is filed on or after the effective date and subsequently denied (for reasons such as the beneficiary being out of valid nonimmigrant status), the employer may then be required to pay the $100,000 fee.

The “Extraordinarily Rare” Exception Clause

While the rule is strict, an exception mechanism exists. The fee requirement may be waived in “extraordinarily rare” circumstances where the Secretary of Homeland Security determines that a particular foreign worker’s presence in the U.S. as an H-1B worker is:

1. In the national interest;
2. No American worker is available to fill the role; and
3. The fee requirement would significantly undermine U.S. interests.

Employers seeking this rare exception must provide substantiating evidence to the designated DHS email address, H1BExceptions@hq.dhs.gov.

Legal Challenges and Industry Impact

The introduction of the $100,000 fee has sparked immediate controversy and legal action, with groups like the U.S. Chamber of Commerce filing lawsuits to challenge the legality and implementation of the mandate. Many businesses argue that the steep cost will deter the hiring of high-skilled foreign professionals and ultimately harm innovation and economic competitiveness in the United States, especially impacting tech companies and large outsourcing firms.

Despite the clarifications, immigration experts suggest the rule will continue to complicate global recruitment strategies for U.S. employers. The H-1B visa remains a crucial channel for highly skilled talent, with the annual cap set at 65,000 visas, plus an additional 20,000 reserved for those with advanced U.S. degrees.