New Guidance on Controversial H-1B Fee
U.S. Citizenship and Immigration Services has released detailed guidance clarifying implementation of the controversial $100,000 H-1B visa fee, according to reports. The guidance addresses significant confusion among employers about payment requirements, application procedures, and the exceptionally narrow criteria for obtaining exemptions from the substantial new cost imposed by a September 2025 presidential proclamation.
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Fee Application Scope and Effective Dates
Sources indicate the fee applies to new H-1B petitions filed on or after September 21, 2025, for beneficiaries outside the United States without valid H-1B visas. The guidance explicitly states the proclamation also applies to petitions requesting consular notification, port of entry notification, or pre-flight inspection for aliens within the United States. However, analysts suggest the most significant clarification for employers is that the fee does not apply to change of status cases where individuals transition between visa categories without leaving the country.
“The guidance explicitly states the fee only applies to cases filed for people outside the United States, so they can come in,” said immigration attorney Dan Berger in an interview cited in the report. “Employers were nervous about doing change of status because the $100k might apply if they travel.”
Important Exclusions and Travel Implications
According to the analysis, the proclamation does not apply to petitions requesting amendments, changes of status, or extensions of stay for aliens already inside the United States. Furthermore, beneficiaries of such petitions reportedly will not become subject to the payment requirement if they subsequently depart the country and apply for visas based on approved petitions. The guidance also confirms that any holder of a current H-1B visa can travel in and out of the United States without triggering the fee requirement.
However, the report states employers would need to pay the fee if USCIS determines an individual is ineligible for a change of status or extension of stay, such as through application denial. This would apply if the individual “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,” according to the guidance.
Payment Procedures and Exception Criteria
For the first time, USCIS has provided specific payment instructions, directing petitioners to submit the $100,000 payment through Pay.gov using the designated form. The payment platform describes the transaction as “H-1B VISA PAYMENT TO REMOVE RESTRICTION.”
While the original presidential proclamation included exception language for cases deemed in the national interest, the USCIS guidance appears significantly more restrictive. According to reports, the immigration service inserted language not present in the original proclamation, including requirements that exceptions would be “extraordinarily rare,” meet a “high threshold,” and demonstrate that “no American worker is available to fill the role.”
The guidance states exceptions will only be granted when the Secretary of Homeland Security determines “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.”
Legal Challenges and Industry Context
The controversial fee has faced significant legal opposition, with the U.S. Chamber of Commerce filing a lawsuit challenging the requirement in October 2026, following earlier litigation from a diverse plaintiff group filed in October 2025. The legal challenges emerge against the backdrop of ongoing H-1B specialty occupation debates, particularly regarding the program’s role in addressing workforce needs in critical technology sectors.
The H-1B program remains a primary pathway for high-skilled foreign nationals to work long-term in the United States, with international students comprising approximately 73% of full-time graduate students in electrical and computer engineering at U.S. universities. The annual cap of 65,000 visas, plus 20,000 exemptions for advanced degree holders from U.S. institutions, creates intense competition for these limited slots amid evolving industry developments in technology and other specialized fields.
Employers seeking exceptions to the $100,000 fee must submit requests and supporting evidence to [email protected], though the guidance suggests approvals will be exceptionally rare. While the new guidance answers some employer questions, analysts suggest it’s unlikely to alleviate concerns about the substantial new cost burden, particularly as businesses navigate complex market trends and workforce requirements.
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The clarification comes amid broader discussions about immigration policy and its intersection with emerging recent technology sectors. As companies continue to adapt to changing regulatory landscapes, many are monitoring how these related innovations in policy implementation might affect their ability to recruit global talent while managing compliance with evolving requirements.
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