On October 20, 2025, the Trump Administration issued additional guidance regarding the September 19, 2025 Presidential Proclamation restricting the entry of H-1B workers to the U.S. The guidance, which appears on the U.S. Citizenship and Immigration Services (USCIS) website, clarifies when the $100,000 fee applies, how and when to pay the fee, and how to request an exception to the fee.
Who is required to pay the $100,000 fee?
The guidance confirms that the fee only applies to:
- Initial H-1B petitions filed on or after September 21, 2025, on behalf of a foreign national who is physically outside the U.S.
- H-1B petitions filed on or after September 21, 2025, on behalf of a foreign national who is physically in the U.S. but is not eligible to change or extend their status in the U.S.
Who is NOT required to pay the $100,000 fee?
The fee does not apply to most H-1B filings, including petitions submitted for:
- Someone who is already in H-1B status and changing employers
- Someone who is in another status (such as F-1 OPT) and is changing status to H-1B as part of the H-1B lottery
- Someone who is changing status to H-1B with a cap-exempt employer
- Someone who is extending their H-1B status with the same employer
Note: Individuals who are applying to change or extend their status must remain in the U.S. while the H-1B petition is pending or they risk incurring the $100,000 fee!
How and when to pay the fee
Petitioning employers who must submit the $100,000 payment must use the H-1B visa payment form on pay.gov before filing a petition with USCIS. Proof of payment or evidence that an exception was granted must be submitted with the petition, or the petition will be denied. Importantly, the form states that the $100,000 fee will be refunded if the H-1B petition is denied.
Exceptions granted by the Secretary of Homeland Security
The Secretary of Homeland Security may grant an exception to the $100,000 fee if:
- The foreign national’s presence in the U.S. as an H-1B worker is in the national interest,
- No American worker is available to fill the role,
- The foreign national does not pose a threat to the security or welfare of the U.S., and
- Requiring the petitioning employer to pay the fee would significantly undermine the interests of the U.S.
The scope of the exception and the evidence required to establish each prong remain unclear, but the eligibility language suggests that the requirements may be similar to that of the National Interest Exceptions, which allowed certain individuals to enter the U.S. during the COVID-19 travel ban. National Interest Exception criteria included travelers seeking to:
- Provide vital support or executive direction for critical infrastructure; or
- Provide vital support or executive direction for significant economic activity in the United States.
The language also suggests that an approved Labor Certification (a common part of the permanent residency process) may be sufficient to show that no American worker is available to fill the role.
Additionally, a White House spokesperson stated in an email that the exception “can include physicians and medical residents,” but the Trump Administration has not yet made any commitments.
Petitioning employers may seek an exception by emailing the request and supporting evidence to H1BExceptions@hq.dhs.gov.
Travel
The USCIS guidance confirms that the travel restrictions and related $100,000 fee do not apply to current H-1B visa holders or foreign nationals who depart the U.S. to apply for an H-1B visa based on an approved change of status, amendment, or extension of stay petition, even when that petition was filed after the effective date of the Proclamation.
However, H-1B workers should still exercise caution regarding international travel, as the situation remains unpredictable. The safest course of action is for H-1B workers to remain in the U.S., as international travel carries some level of unavoidable risk.
Additional Information:
Harter Secrest & Emery’s Immigration practice group will continue to monitor the situation closely and provide updates as they become available.
Visit HSE’s Trump Administration Immigration Updates resource page for additional insights and resources.