On October 20, 2025, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance regarding the President’s September 19, 2025 proclamation, which restricts the entry of certain H-1B nonimmigrants by imposing a $100,000 fee. As detailed below, whether a company will be subject to the super fee will depend on whether the candidate is in the United States in a valid nonimmigrant status and whether they can request a change of status, an extension of stay (including a change of H-1B employer petition) or an amendment. This welcome guidance makes clear that the vast majority of H-1B petitions filed by our clients, who hire candidates in F-1 status who have recently graduated from U.S. colleges and universities, as well as those working for other employers in H-1B status, will not be subject to the super fee. Rather, it will be the large staffing companies that bear the brunt of the proclamation, as many of their H-1B filings will be subject to the super fee, as they file H-1B petitions for their existing foreign-based employees. As an added benefit, the lottery selection rate that our clients experience will surely rise if these staffing companies reduce the number of registrations they submit in the annual H-1B lottery as a result of the super fee.
Who is subject to the fee?
The updated guidance clarifies that the $100,000 fee will apply to the following H-1B petitions, if filed on or after the September 21, 2025 effective date of the proclamation:
- petitions filed for beneficiaries who are outside the United States and do not have valid H-1B visas; and
- petitions requesting consular notification, port of entry notification or pre-flight inspection for a beneficiary in the United States.
The fee will not apply to petitions requesting a change of status, extension of stay or amendment unless USCIS determines that the beneficiary is ineligible for the requested benefit (e.g., if the beneficiary is not in a valid nonimmigrant visa status, or if the beneficiary departs the United States prior to the adjudication of a change of status request).
Who is NOT subject to the fee?
The fee will not apply to the following H-1B petitions:
- petitions requesting a change of status (including those filed pursuant to an H-1B lottery selection), extension of stay (including change of employer petitions) or amendment for a beneficiary inside the United States, if USCIS grants the requested benefit (i.e., they are maintaining their nonimmigrant status and/or have not departed the United States); and
- petitions filed prior to the September 21, 2025 effective date of the proclamation.
The guidance clarifies that the fee will also not apply to beneficiaries with previously issued and currently valid H-1B visas, nor will it apply to beneficiaries of approved change of status, extension of stay or amendment petitions who subsequently depart the United States and apply for H-1B visas.
Payment of the fee
Payment must be made prior to filing an H-1B petition that is subject to the $100,000 fee, as petitioners must submit proof of payment with the petition. Petitions that are subject to the fee and filed without proof of payment, or evidence of a granted exception, will be denied. Petitioners can submit the payment by following the instructions at the following link: https://www.pay.gov/public/form/start/1772005176.
Exceptions
The guidance notes that the Secretary of Homeland Security can grant exceptions to the fee in “extraordinarily rare” circumstances where the Secretary has determined that a particular beneficiary’s presence in the United States as an H-1B employee is in the national interest, that no American worker is available to fill the role, that the beneficiary does not pose a threat to the security or welfare of the United States, and that requiring the petitioning employer to make the payment on the beneficiary’s behalf would significantly undermine the interests of the United States.
What’s next?
When planning to file an H-1B petition on behalf of a current or prospective employee, clients should confer with counsel in the HSF Kramer Immigration Group to determine if the petition is subject to the $100,000 fee. We will continue to provide updates as implementation of the proclamation is rolled out. Moreover, the proclamation faces several legal challenges, which could lead to further developments.
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