President Trump issued a presidential proclamation on September 19 that prohibits an H-1B speciality occupation employee from entering the country unless their employer has paid a $100,000 fee for the sponsored employee. USCIS issued additional guidance on how to implement this proclamation today. Federal immigration officials had previously released some preliminary instructions when the proclamation went into effect on September 21, but there were still a lot of unanswered issues. On the USCIS website, this new guideline provides answers to many of those unanswered issues.
H-1B applications seeking notification from consular authorities: According to the new guidance, a petition is subject to the $100,000 fee if the requested action is to notify a U.S. consulate, port of entry, or pre-flight inspection of the petition approval; that is, if the petition does not call for an amendment, change of status, or an extension of stay. Whether the foreign beneficiary is in the United States or not at the time of filing, the fee will still apply to a consular notice H-1B petition. Whether the cost will be charged for a consular notification petition in which the foreign individual already has a valid H-1B visa is still unclear, though.
Status change requests: If USCIS approves a change of status request, the fee does not apply to the H-1B petition. However, USCIS will not approve the underlying H-1B petition without payment of the $100,000 fee if a change of status is requested and denied, and only consular notification is approved because the foreign national travelled, while the petition was pending or was found to have violated status. This advice is particularly pertinent to FY 2027 H-1B cap cases that are scheduled to be submitted in the spring or summer of 2026. The $100,000 fee will not be charged if a change of status request is submitted along with an H-1B cap petition and the change of status is granted.
Requests for extensions of stay: The fee will not be applied to the H-1B petition if USCIS requests and approves an extension of stay. However, USCIS will not approve the underlying H-1B petition without the $100,000 fee (perhaps with the exception of valid H-1B visa holders) if an extension of stay is requested and denied.
Amendments to petitions: The fee will not be charged for the H-1B petition if USCIS approves an amendment of H-1B status. Nevertheless, similar to status changes and extensions, USCIS will not approve the underlying H-1B petition without the $100,000 fee if an amendment of status request is rejected.
Petition for change of employer: If a change of employment petition requests an extension of stay and the request is granted, the $100,000 fee will not be charged. On the other hand, the $100,000 charge will apply if a change of employer petition is submitted or accepted for consular notice.
Employment continuation with the same company: Whether a petition for continuation of employment with the same employer is subject to the $100,000 charge seems to depend on whether it is filed with a request for a consular notification or an extension of stay. Although USCIS previously stated that the proclamation did not apply to H-1B renewals, the new guidance states that the $100,000 fee will be applied even if the petition is filed for consular notification by an H-1B employee’s current employer seeking to continue the same employment. However, the petition is exempt from the charge if the employer’s request for an extension of stay is granted.
Effects of travelling abroad following petition approval: The foreign national will not be charged the cost if they leave the country after their petition is granted, without the $100,000 fee being necessary.
Denied Petitions: In the event that the H-1B petition is rejected, the $100,000 cost will be reimbursed, per the newly new online form.
Exceptions to the fee requirement: According to USCIS, the Secretary of Homeland Security may only make an exception to the fee requirement in extremely rare circumstances if it is determined that (1) the H-1B worker’s presence serves the national interest, (2) no American worker is available, (3) the H-1B worker poses no threat to national security or welfare, and (4) the payment would materially undermine US interests. Employers who wish to request such an exemption must send a thorough request along with any necessary supporting evidence to [email protected], an email address maintained by the Department of Homeland Security (DHS). In the event that the request for an exemption is approved, the H-1B petition should be sent to USCIS for review along with the DHS approval. DHS has not stated how long it will take to approve or reject a request for an exception from the $100K cost.
Payment instructions: For all petitioners who are not exempt or exempt from the fee requirement, USCIS has mandated that payments be made through pay.gov and at the following website:
https://www.pay.gov/public/form/start/1772005176, before submitting a petition to USCIS. According to USCIS, the filing must be accompanied by proof of payment or evidence of an exception.
Luke Bowman Law will continue to monitor and will offer more direction if new details become available. If you have questions regarding your specific situation, feel free to contact us or book an appointment here
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Sincerely,
Luke Bowman
The Law offices of Luke Bowman