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President Donald J. Trump's Sept. 19 proclamation, "Restriction on Entry of Certain Nonimmigrant Workers," introduced a major shift in H‑1B filing strategies. Meticulous planning now is essential, and we are prepared to guide your organization and ensure your petitions remain compliant and strategic. United States Citizenship and Immigration Services'(USCIS) Formal Guidance issued on October 20 provides new clarity as to when the fee does and does not apply.
What It Means for You
- There isno impacton current visa holders. Existing H‑1B holders can continue to travel freely in and out of the United States without any additional fee.
- If you're filing a new H‑1B petition on behalf of:
- Someone outside the United States, who does not have a valid H-1B or
- Someone whose petition requests consular notification, port of entry notification, or pre-flight inspection
be prepared to pay $100,000 and include proof of payment with your petition.
- For filings like extensions, amendments, or changes of status where the beneficiary is currently in valid status in the United States, the fee typicallywill not apply,assumingthe
- Petition is approved and
- The beneficiary did not travel outside the United States during adjudication of a change of status request.
- In cases meeting the stringent national interest criteria, an exception may be sought—but these arehighly discretionary.
New Guidance
The USCIS guidance provided the following scenarios regarding
application of the $100,000 fee:
|
Petition Type |
Subject to $100K Fee? |
|
New H-1B petitions filed on or after September 21, 2025, on behalf of beneficiariesoutsidethe United Stateswithouta valid H‑1B visa. |
YES |
|
Petitions filed on or after September 21, 2025, that requests consular notification, port-of-entry notification, or pre‑flight inspection for individuals in the United States. |
YES |
|
Petition filed on or after September 21, 2025, requesting a
change of status or amendment or extension of stay and USCIS
determines that the foreign national
isineligiblefor a change of status or an amendment
or extension of stay. -Beneficiary isnotin avalid
nonimmigrant visa statusor |
YES |
|
Petitions filed before September 21, 2025. |
NO |
|
Previously issued and currently valid H-1B visas. |
NO |
|
Petitions filed on or after September 21, 2025, for amendment,
change of status, or extension where the request is approved for a
beneficiaryinsidethe United States. Beneficiaries who travel abroad,after approval of the petition, to apply for a visa based on the approved petition and/or seek to reenter the United States on a current H-1B visa, willnotbe considered to be subject to the payment. |
NO |
National Interest Exception Process
Requests for exceptions from the $100,000 fee are extremely limited and may be granted only when all the following criteria are met:
- The worker's presence is in the national interest.
- No qualified U.S. worker is available for the role.
- The worker does not threaten U.S.security or welfare.
- Imposing the fee would significantly undermine U.S. interests.
To request an exception, the employer must submit a detailed request and supporting evidence to the U.S. Department of Homeland Security.
Next Steps
We strongly recommend that your organization contact our team to aid you in:
- Reviewing all eligible H‑1B filings to determine which may be subject to the fee.
- Assembling comprehensive documentation if your candidate qualifies for an exception and submitting an exemption request to DHS promptly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
