U.S. Citizenship and Immigration Services (USCIS) issued updated guidance regarding the President’s September 19th proclamation on October 20th, 2025. The salient points include the provisions that any H-1B petitions that are approved for an extension of stay, amendment or change of status – including change of employer petitions -will not be subject to the Presidential Proclamation or the associated $100,000.00 filing fee.
Additional Key Provisions:
USCIS also indicated that foreign nationals located within the United States with approved H1B petitions will not be subject to the proclamation or associated $100,000 fee if they depart the United States. A departure from the USA by a foreign national while an H-1B petition is pending will trigger the H-1B visa fee.
H-1B petitions filed with consular notifications after the effective date of September 21st, 2025, will be subject to the $100,000 fee regardless of whether the foreign national was in the United States at the time of the H-1B filing, apart from certain foreign nationals who hold current H-1B status.
Filing for Exceptions:
To qualify for a national interest exception, USCIS regulations mandate a high level and threshold mandating that the U.S. employer is unable to locate a qualified U.S. worker available for the role and contrary to the Proclamation itself, USCIS does not permit exceptions on a company-wide or industry-wide basis.
Eligibility for national interest exceptions would be granted only in ‘exceptionally rare’ circumstances where the following criteria may be met:
- The foreign national’s presence in the United States is in the interest of the national interest of the United States;
- No American worker is available to assume the position offered;
- The foreign national does not pose a security threat to the United States;
- Payment of the $100,000 fee by a U.S. employer would significantly undermine the national interest of the United States.
Considerations:
Travel Outside the United States after petition approval –If a foreign national employee departs the United States after the petition is approved, they will not become subject to the $100,000.00 fee because of their departure.
Denied H-1B petitions – The online form created to facilitate payment of the $100,000 fee indicates that if the H-1B petition is denied, the fee will be refunded.
Pending federal court litigation – Two federal court lawsuits including schools, nursing organizations, religious and not for profit organizations as well as the U.S. Chamber of Commerce are suing the Department of Homeland Security/USCIS claiming that the 100K fee exceeds executive authority and violates federal statutes.
The lawsuits further claim that the fees are harmful for economic growth and harm our country’s ability to attract foreign talent. Further claims include the fact that the agency implemented the new fee without proper notice or public comment, circumventing standard federal rulemaking procedures.
H-1B visa cap and filing period - The 2027 fiscal year H-1B filing period commences on April 1st, 2026, with an electronic lottery filing that will likely take place in March 2026.
