US Immigration Issues Guidance: Who Pays the $100,000 H-1B Fee?

By Richard T. Herman, Esq., Immigration Lawyer | Herman Legal Group

In June 2020, the Trump administration announced a new $100,000 fee for H-1B visa applications, causing widespread confusion among employers and foreign workers. President Donald Trump signed a proclamation introducing this fee, marking a significant change in the H-1B visa process. When President Trump signed the proclamation, it set in motion a formal rule-making process required before the new policy could take effect.

Overview

In a landmark policy move announced on September 19, 2025, the Trump administration introduced a sweeping $100,000 fee for certain new H-1B visa petitions. This new rule, implemented by USCIS, created widespread confusion among employers and foreign professionals alike, prompting questions about who must pay, how the payment works, and whether any exceptions exist. The new fee is widely seen as a step to reform the H-1B visa program and curb abuses.

Despite the guidance, there are still unanswered questions regarding the implementation and compliance requirements of the new fee.

On October 20, 2025, the U.S. Citizenship and Immigration Services (USCIS) issued formal guidance clarifying these points. This article explains—clearly and comprehensively—how the new fee functions, who it affects, and what every employer or worker should do next.

Background: The $100,000 H-1B Fee

A Presidential Proclamation That Changed Everything

President Trump’s Proclamation on the Restriction on Entry of Certain Nonimmigrant Workers imposed a $100,000 fee on employers filing new H-1B petitions for beneficiaries outside the United States. The Proclamation applies only to new petitions for individuals who are outside the U.S. and do not already hold a valid H-1B visa.

The official goal was to “protect American workers and prioritize domestic hiring,” but in practice, it has upended hiring strategies in technology, research, and health care. The fee is intended to ensure that employers prioritize hiring an American worker when available before seeking foreign talent.

Under the new framework, petitions filed at or after 12:01 a.m. ET on September 21, 2025 are subject to the fee if the beneficiary is abroad or requires consular notification to obtain a visa. The Proclamation specifically states it applies to individuals outside the U.S. who do not have a valid H-1B visa.

The Lawsuits Begin

On October 16, 2025, the U.S. Chamber of Commerce filed suit in federal court, arguing that the proclamation exceeds presidential authority and imposes an unlawful financial burden on employers. Earlier, a coalition of universities, startups, and immigrant rights groups had filed a similar challenge. Lawsuits have also raised concerns that the $100,000 fee could negatively impact certain industries and the broader economy.

Legal experts expect litigation to continue into 2026, meaning employers must stay alert for injunctions or temporary stays.

Why the H-1B Program Matters

The H-1B visa remains the most common path for high-skilled foreign professionals to work long-term in the United States. According to federal data, 73% of full-time graduate students in electrical and computer engineering at U.S. universities are international.

Each year, 65,000 H-1B visas are available under the regular cap, plus 20,000 advanced-degree exemptions for U.S. master’s graduates. Employers already pay up to $6,000+ in government fees per petition—and must meet strict wage standards tied to the Department of Labor (DOL)’s prevailing wage system.

The new $100,000 fee represents a staggering increase that fundamentally changes the economics of sponsorship.

USCIS Guidance: Who Must Pay

USCIS clarified its position in a news release and FAQ on October 20. The key points:

• The fee applies to new H-1B petitions filed on or after September 21, 2025, if the beneficiary is outside the U.S.
• It also applies if a petition requests consular notification, port-of-entry notification, or pre-flight inspection for an individual abroad.
• The fee does not apply to petitions for individuals currently inside the U.S. seeking a change of status, extension, or amendment.
• USCIS determines whether the $100,000 fee applies based on the beneficiary’s location and the type of petition at the time of filing.

Key Insight:“If a petition is filed for someone inside the U.S. changing to H-1B status, the $100,000 fee does not apply.”

Who Is Exempt

USCIS explicitly states that the fee does not apply to certain exempted petition types:

• Extensions or amendments for workers already in valid H-1B status are exempted.
• Change-of-status cases (e.g., moving from one category of visa, such as F-1 student, to H-1B worker) when filed within the U.S. are exempted.
• Previously approved petitions (i.e., an approved petition submitted before September 21, 2025) are exempted.
• Travel re-entry on an existing valid H-1B visa is exempted.

When Uncertainty Arises

If USCIS later determines the worker was not in valid status or left the U.S. before a change-of-status decision, the fee can still apply. If there is a pending petition, this can further complicate matters—changes in the worker’s status during processing may affect whether the fee is ultimately required. Employers should maintain immigration records to avoid retroactive liability.

How to Pay the $100,000 Fee

USCIS directs petitioners to submit the payment electronically via the official Pay.gov H-1B Visa Payment Portal. The payment of the $100,000 fee must be submitted through pay.gov before filing an H-1B petition.

The form is titled “H-1B VISA PAYMENT TO REMOVE RESTRICTION.” Employers must follow all instructions on the Pay.gov page and retain a receipt as proof of payment. Petitioners must also submit proof of payment or evidence of an exception from the Secretary of Homeland Security at the time of filing.

Best practices for employers:

• Ensure payment is completed before petition submission.
• Store the Pay.gov receipt and transaction confirmation in HR records.
• Coordinate with legal counsel to determine fee applicability.
• Monitor the USCIS newsroom for updates.

Exception: The National Interest Waiver

A Rare Escape Clause

The presidential proclamation permits the Secretary of Homeland Security to grant a fee waiver if the employment of the H-1B worker is in the national interest and does not threaten U.S. security or welfare.

However, the USCIS guidance adds new language not found in the original proclamation, calling such exceptions “extraordinarily rare” and reserved for cases meeting a “high threshold.”

Eligibility Factors

• No qualified U.S. worker is available for the role.
• The beneficiary’s presence serves the national interest.
• Requiring payment would “significantly undermine U.S. interests.”

How to Request an Exception

Employers believing they qualify may submit a written request and supporting evidence to
H1BExceptions@hq.dhs.gov. Petitioners requesting an exemption from the fee must submit all supporting evidence to a designated email address at DHS.

The submission should include a detailed explanation of the position, national benefit, and evidence of U.S. worker unavailability.

Alert/Update:
“National interest waivers to the $100,000 H-1B fee are expected to be extraordinarily rare.”

Timeline of Key Events

Border Protection Considerations

The introduction of the $100,000 H-1B fee by the Trump administration marks a significant shift in U.S. immigration policy, with direct implications for border protection and the admission of certain nonimmigrant workers. According to the presidential proclamation, this new fee applies to H-1B petitions filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, for foreign nationals outside the United States who do not already possess a valid H-1B visa. The stated intent from the White House is to prioritize American workers and ensure that the H-1B program serves the national interest, rather than being used to bypass domestic hiring.

From a border protection standpoint, the Department of Homeland Security (DHS) is tasked with collecting the $100,000 H-1B fee and utilizing these funds to bolster border security and enforce immigration laws. The fee applies to each new H-1B petition filed for foreign workers abroad, reinforcing the administration’s focus on regulating the entry of nonimmigrant workers and safeguarding opportunities for U.S. citizens. The USCIS guidance further clarifies that the fee is required for petitions involving consular notification or pre-flight inspection, ensuring that only those foreign nationals whose employment is deemed to be in the national interest are admitted under the H-1B visa program.

Importantly, the guidance outlines specific exemptions, such as for student visa holders (F-1) who are changing status to H-1B within the U.S., and for those with previously approved petitions submitted prior to the effective date. Employers seeking a national interest exemption for their foreign national employees must provide compelling evidence that the employment of the individual is essential to the United States and that paying the fee would significantly undermine national interests. Such exemptions remain extraordinarily rare and are subject to strict scrutiny by DHS.

The implementation of the 100,000 H-1B fee has generated considerable debate among employers, immigration attorneys, and policy experts. Many employers—especially small and medium-sized businesses—are concerned about the financial burden and the potential impact on their ability to recruit highly skilled foreign workers. The White House spokesperson has emphasized that the new fee is designed to prevent abuse of the H-1B program and to ensure that the admission of foreign workers aligns with the national interest and border protection priorities.

Given these developments, it is crucial for employers and foreign nationals to stay informed about the evolving requirements and to seek guidance from experienced immigration services professionals. Understanding the intersection of the new H-1B fee, border protection policies, and national interest exemptions is essential for compliance and for making informed decisions about hiring and immigration strategy in the current landscape.

Practical Implications for Employers

The impact on corporate America is immediate and severe:

• Cost spike: $100,000 per foreign hire adds millions to annual budgets for large tech employers.
• Hiring delays: Companies may pause foreign recruitment pending court rulings.
• Strategic re-evaluation: Firms may shift toward O-1 visas or offshore contracting.
• Documentation burden: Employers must track beneficiary status to avoid misclassification.

Sectors most affected: IT services, engineering consulting, finance, biotech, and health care.

Impact on Foreign Workers

For foreign professionals, the fee poses indirect risks. If their employer refuses to sponsor due to cost, career prospects and immigration plans may collapse. Current H-1B visa holders with valid status are not subject to the new fee and can continue working in the U.S. without issue.

Workers already in the U.S. on F-1 OPT or other status should pursue change of status filings within the U.S. to avoid the fee. Those outside the U.S. must confirm that the employer is prepared to pay before visa stamping. H-1B visa holders who re enter the U.S. on a valid H-1B visa are not required to pay the new fee.

Expert Tip:“F-1 students changing to H-1B inside the U.S. are not subject to the $100,000 fee.”

Ongoing Legal Challenges and Policy Debate

Immigration law experts question whether the President can impose such a massive fee without Congressional authorization. Multiple lawsuits claim it violates the Administrative Procedure Act and the Immigration and Nationality Act (INA). The new policy also departs from previous guidance issued by immigration authorities regarding H-1B fee requirements.

Observers note that even if the rule survives, its deterrent effect may reshape the global talent market for years. Organizations like the American Immigration Lawyers Association (AILA) and the National Foundation for American Policy continue to urge reform.

Strategic Tips for Employers

• Audit current cases to identify which petitions trigger the fee.
• File before travel: If the beneficiary is inside the U.S., avoid consular processing.
• Maintain status: Ensure foreign workers remain in valid status to prevent fee reclassification.
• Evaluate alternatives: Consider L-1, O-1, TN, or EB green card options.
• Prepare for litigation outcomes: Track court rulings that may delay implementation.
• Budget and communicate: Align legal, finance, and HR departments on new cost expectations.

What Foreign Workers Should Do

• Verify whether you are inside the U.S. and eligible for change of status.
• If abroad, confirm that your employer has paid the fee before visa appointment.
• Avoid unnecessary travel that might shift you into a fee-subject category.
• Request transparency on company’s payment plan and timing.
• Monitor the USCIS FAQ page for updates.

The Bigger Picture

Beyond legal and financial impacts, the fee reflects a broader policy philosophy to raise barriers for foreign talent and emphasize “America First” economic goals. The policy also aims to prioritize United States citizenship in employment and immigration decisions. Analysts expect the administration to pursue additional measures such as wage-tiered lotteries and expanded site inspections.

For employers and workers alike, the lesson is clear: compliance planning, documentation, and timing are now mission-critical.

Author Bio / Profile

Richard T. Herman, Esq. is the founding partner of the Herman Legal Group, a national immigration law firm serving clients in all 50 states and abroad. With over 30 years of experience, Richard represents employers, entrepreneurs, and families in complex U.S. immigration matters. He is also co-author of the book Immigrant, Inc. and a regular commentator on immigration policy.

• Read his attorney bio
• Learn more about Herman Legal Group
• Schedule a consultation here

Key Takeaways

• The $100,000 H-1B fee applies only to new petitions filed for beneficiaries outside the U.S. after September 21, 2025.
• Change-of-status and extension filings within the U.S. are exempt.
• Employers must pay the fee via Pay.gov.
• Fee waivers are possible but granted only in “extraordinarily rare” national-interest cases.
• The U.S. Chamber of Commerce and others have sued to overturn the policy.
• Employers should reassess hiring strategies and prepare budgets accordingly.
• F-1 students transitioning inside the U.S. should avoid international travel until status approval.
• Litigation outcomes in 2026 may determine whether the rule survives long-term.