The recent presidential proclamation introducing a $100,000 fee for new H-1B petitions has raised many questions and concerns among employers and foreign nationals. This client alert provides the latest insights based on the proclamation and subsequent guidance.
USCIS has issued guidance clarifying that the new fee does not change any payments or fees required to be submitted in connection with H-1B renewals. The fee is a one-time fee applicable upon the submission of a new H-1B petition. Furthermore, the fee does not prevent any holder of a current H-1B visa from traveling in and out of the United States.
The proclamation does not provide exceptions for cap-exempt H-1B petitions, employment, or entries. It remains unclear whether cap-exempt organizations might qualify for a national interest exception solely based on their cap-exempt status. Additionally, Canadian nationals, despite being visa-exempt, are subject to the proclamation in the same manner as individuals from other countries. This means they are not exempt from the $100,000 fee requirement.
The proclamation specifically targets H-1B workers under the Immigration and Nationality Act Section 101(a)(15)(H)(i)(b) and does not affect the H-1B1 program for Chilean and Singaporean nationals. However, H-1B1 visa holders should prepare for potential delays and confusion at ports of entry and be ready to clarify their distinct immigration status.
Currently, there is no announced procedure for paying the $100,000 fee or seeking an exemption under the national interest exception. The Trump Administration has not provided guidance on this matter, leaving a significant gap in compliance processes. While H-1B extensions with the same employer are confirmed to be exempt from the fee, there is no clarity on whether the fee applies to H-1B change of employer petitions. Additionally, it is unclear whether the fee applies to change of status petitions for beneficiaries currently in the U.S. in another non-immigrant status.
We will continue to monitor developments and provide updates on any changes or clarifications regarding the $100,000 H-1B fee and its implementation.
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