New USCIS Guidance Clarifying Who Pays $100,000 H-1B Fee

On September 19, 2025, the President issued a Proclamation on the Restriction on Entry of Certain Nonimmigrant Workers, requiring any new H-1B petitions to include an additional $100,000 payment as a condition for eligibility.

Following the President’s announcement, USCIS released clarification on the new fee requirement, specifying that the surcharge only applies to new H-1B petitions filed on or after 12:01 a.m. EDT on September 21, 2025. The fee is triggered only when the foreign national beneficiary is outside the United States at the time the petition is filed, and the petition requires visa issuance at a U.S. or port of entry notification.

Importantly, the USCIS guidance also clarifies who is exempt from the surcharge. For example, H-1B petitions filed before the effective date are not subject to the fee. Additionally, individuals already in H-1B status in the U.S.—such as those seeking extensions, amendments, or a change of employer—are not required to pay the surcharge under the current guidance. The responsibility for paying the fee rests with the petitioner (employer), and proof of payment must be included with the petition at the time of filing. USCIS instructs employers to submit the required fee using pay.gov, following the payment instructions.

Quick Highlights

The fee does not apply to:

Petitions filed prior to Sept. 21.
Beneficiaries of previously issued and currently valid H-1B visas.
Petitions requesting an amendment, change of status, or extension of stay for a beneficiary inside the U.S., when USCIS subsequently grants that request.

From a practical HR and immigration-strategy viewpoint, the clarification brings much-needed specificity. Employers must now evaluate not just the filing date of the H-1B petition but also the location and status of the foreign worker to determine whether the surcharge applies. Because the requirement is narrower than some had feared—that is, it doesn’t broadly apply to all H-1B filings—it allows many employers to proceed with internal transfers, extensions and other in-U.S. matters without incurring the surcharge. At the same time, for new overseas hires who will be outside the U.S. when the petition is filed, the surcharge adds a significant cost and administrative layer.

For foreign nationals seeking H-1B status, this guidance offers both relief and caution. Those already in the U.S. on H-1B or transitioning under change-of-status are largely unaffected by the $100,000 surcharge under current rules. But for those outside the U.S., or for employers planning consular-processing cases filed after the effective date, the cost is real and must factor into employment offers, budgeting and immigration timelines.

In summary, USCIS’s recent guidance ensures that the surcharge is not sweeping but rather targeted: it applies only to a defined subset of H-1B petitions involving foreign nationals abroad and filed after September 21, 2025.

Employers who understand the interplay of filing date, worker location/status and petition type can manage the impact, while international workers should confirm whether their case is subject to the surcharge before commitments are made.

Request for Exceptions

For those impacted by the fee, the Secretary of Homeland Security may grant an exception to the $100,000 payment only in “extraordinarily rare” circumstances. To qualify, the Secretary must determine that the foreign worker’s presence in the United States as an H-1B employee serves the national interest, that no U.S. worker is available to fill the role, that the worker poses no threat to the nation’s security or welfare, and that requiring the employer to make the payment would significantly harm U.S. interests.

Employers who believe their H-1B candidate meets this high standard are instructed to submit a formal request, along with all supporting documentation, to H1BExceptions@hq.dhs.gov.

Pending Litigation

Two federal lawsuits have been filed challenging the legality of the new fee. On October 3, a coalition of labor unions, hospitals, schools, and religious organizations brought a lawsuit in the U.S. District Court for the Northern District of California, arguing that the executive action is unconstitutional and violates the Administrative Procedure Act. The plaintiffs claim that the $100,000 fee exceeds presidential authority and threatens critical workforce pipelines across multiple sectors.

Separately, on October 16, the U.S. Chamber of Commerce filed its own lawsuit, asserting that the surcharge places an excessive financial burden on employers, weakens U.S. economic competitiveness, and could exacerbate existing labor shortages. Both suits seek to block enforcement of the presidential proclamation. The lawsuits remain ongoing.

For more information on the USCIS guidance, please click here.

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