Clarified Guidance on $100,000 H-1B Fee for Foreign Workers

Strategic Insights -

The recent update to the proclamation by President Trump requiring a $100,000 fee for certain H-1B petitions has sparked a stir in the immigration community. The new guidance, issued by U.S. Citizenship and Immigration Services (USCIS), clarifies the scope and application of the fee, providing much-needed clarity for employers and foreign workers. However, the policy raises ongoing risks and considerations that require careful attention.

Key Takeaways:

  • The new guidance clarifies that workers already in the U.S. are generally exempt from the $100,000 fee, with certain exceptions, such as foreign nationals without a valid H-1B visa stamp.
  • Foreign workers outside the U.S. are primarily subject to the fee, with exceptions for those with a valid H-1B approval notice showing USCIS approval of a request for extension, amendment, or change of status.
  • The fee does not apply to workers in the U.S. in an immigration status other than H-1B who request a change of status to H-1B, as long as USCIS approves their request.
  • The new guidance requires employers to pay the $100,000 fee, where applicable, prior to filing a petition with USCIS.
  • Petitions subject to the $100,000 payment that are filed without a copy of the proof of payment or evidence of an exception will be denied by USCIS.

Statistics:

  • The $100,000 fee applies to foreign nationals who, after September 21, 2025, have an H-1B petition filed and have never held H-1B status or have previously held H-1B status but do not have a valid H-1B visa stamp.
  • The new guidance provides no blanket exceptions to the fee and states that National Interest Exception requests will be granted only in "extremely rare" circumstances.
  • If the guidance is implemented as written, technical violations and interruptions to the continuous maintenance of H-1B status may subject workers to the fee long after their initial grant of H-1B status.

Sources:

  • U.S. Citizenship and Immigration Services (USCIS)
  • Ballard Spahr LLP
  • Mondaq Ltd
  • The Upshot