Summary
USCIS has recently provided additional information regarding the new $100,000 'Proclamation Fee' introduced by the September 19, 2025, Presidential Proclamation. This fee applies to certain H-1B petitions for workers outside the United States, or for employees who may be currently in the U.S. but are required to consular process to ultimately effectuate their H-1B status upon entry to the United States.
Scope of the Proclamation
The proclamation originally suggested the fee would be broadly applied to H-1B workers currently outside the United States. However, the recent guidance issued by USCIS has clarified that the fee will be applied much more narrowly.
Specifically, the $100,00 fee applies to:
- Petitions filed after 12:01 EDT, September 21, 2025.
- The Beneficiary is outside the U.S. and lacks a valid H-1B visa.
- The Petition is filed with a request for “Initial Issuance” to be processed at a Consular post instead of a request to change, extend or amend status.
- USCIS approves the petition but denies the Change, Extension or Amendment of status request, or the beneficiary departs the U.S. while the petition is pending.
Importantly, the $100,000 fee should not apply to:
- Any Petitions filed before Sept. 21, 2025.
- Any Change, Extension, or Amendment of Status Petitions that are approved.
- When the Beneficiary applies for a visa stamp at a consular post, following the approval of a Change, Extension, or Amendment of Status Petition.
- Admissions pursuant to a new visa issued based on an approved Change, Extension or Amendment Petition or pursuant to a “current valid H-1B visa.
USCIS also provided a link to pay the $100,000 fee using the pay.gov system and confirmed the fee must be paid prior to filing a H-1B petition to which the fee applies. USCIS will refund the $100,000 fee if the H-1B petition is denied.
Exemptions
In addition to clarifying when the $100,000 fee would apply, USCIS also announced that exceptions to the fee might be granted in the “extraordinarily rare circumstance” where the Secretary of Homeland Security determined that:
- The H-1B worker’s employment is in the national interest,
- No qualified U.S. worker is available for the position,
- The worker poses no security or welfare risk, and
- Requiring the payment would undermine U.S. interests.
Employers who believe they can meet these requirements are instructed to send their request, along with supporting evidence, to H1BExceptions@hg.dhs.gov.
Notably, there was no guidance provided on evidentiary requirements for the exemptions or processing timeframes once the request was made to the government.
Conclusion
The updated guidance provides much-needed clarification regarding which individuals and petitions are subject to the $100,000 fee. Importantly, existing H-1B beneficiaries who continue to maintain their H-1B status and many potential beneficiaries of H-1B petitions in the upcoming H-1B cap lottery, including F-1 students who are eligible to change status to H-1B, will not be subject to the fee. We expect additional updates in the coming months as legal challenges work their way through the federal court system.
MVA will continue to closely monitor this activity and will provide new updates as they are released.
