Employment Law Update: USCIS Issues Guidance on $100,000 Fee on New H-1B Petitions
Date: November 13, 2025
The Presidential Proclamation issued on the same date as the DOL announcement requires that new H-1B petitions filed after the effective date, on behalf of beneficiaries who are outside of the United States and who do not have a valid H-1B visa, must pay a new $100,000 fee, as a condition of eligibility for the visa. The proclamation, entitled Restriction on Entry of Certain Nonimmigrant Workers, became effective at 12:01 a.m. EDT on Sunday, September 21, 2025.
The Proclamation caused immediate confusion and a mad scramble with H-1Bs who were out of the U.S. scrambling to return home in fear that the new fee would apply to them. Since then, the U.S. Citizenship & Immigration Service (USCIS) and the Department of State (DOS) have set about developing a framework for how the new fee will be applied.
On October 20, 2025, USCIS provided some additional guidance on the Proclamation, which can be summarized as follows.
The fee is required for any petition filed after 12:01 am EDT on September 21, 2025, where the following criteria are met:
- The beneficiary is currently outside of the United States and does not have a valid H-1B visa;
- Consular notification was the “requested action” selected on the submitted I-129; or
- USCIS approves the petition but denies the change or extension of status (COS/EOS), or the beneficiary departs the U.S. while the petition is pending.
The fee is not required in the following situations:
- Any petitions filed before 12:01 AM EDT on September 21, 2025;
- Petitions in which a COS, EOS or amendment is the requested action and the request is granted;
- Visa applications pursuant to H-1B petitions that have been approved as a COS/EOS/Amendment; or
- Admissions pursuant to a new visa issued based on an approved COS/EOS/Amendment petition or pursuant to a “current valid H-1B visa.”
The Proclamation also provides for a “national interest” exception to the fee, which must be approved by the Secretary of the Department of Homeland Security. To meet this standard, the employer must show:
- A particular beneficiary’s presence in the United States as an H-1B worker is in the national interest;
- No “American” is available to fill the role;
- Requiring the petitioning employer to make the payment on the foreign national’s behalf would significantly undermine the interests of the United States; and
- The beneficiary does not pose a threat to the Security or welfare of the United States.
Despite the above clarifications, there remain several questions about the application of the fee, particularly in the ubiquitous gray areas of immigration law. There has also been understandably strong opposition to the fee, noting that only the largest employers will be able to afford the fee, shutting out small businesses that have benefited from having highly qualified talent under the H-1B program. A bipartisan group of legislators has also signed on to a statement seeking withdrawal of the Proclamation.
Currently, two lawsuits are challenging the implementation of the new fee. On October 16, 2025, the U.S. Chamber of Commerce filed suit seeking to have the fee set aside. The Chamber has since filed a motion for preliminary injunction and summary judgment, which is currently pending. The first lawsuit was filed by Global Nurse Force. With reports that federal agencies are enforcing the fee requirement, including a recent instance where USCIS notified employers of the need to pay the fee, it is likely that stepped-up legal action will be forthcoming.
Whiteford’s Employment Law team will continue to monitor and report on these developments.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.