The $100,000 H-1B Fee: What The USCIS Proclamation Really Means

When the White House rolled out its proclamation under INA § 212(f), it sounded like a wall was about to come down. The text tied the $100,000 requirement to entry into the United States. Employers rushed to interpret what that meant, workers abroad wondered if they'd be stranded, and confusion spread about whether even an extension of stay could be swept in.

Visa vs. Status: Why the Proclamation Created Confusion

Part of the hysteria came from how the word visa gets tossed around in everyday conversation. People often say "visa" when they mean a visa classification (like H-1B, F-1, L-1, O-1) or even a person's status in the U.S. Technically, though, a visa is the foil placed in a passport by a consulate that allows someone to request admission at the border. Status, on the other hand, is the legal authorization to live and work in the United States once admitted. While a visa foil is not required to remain in the U.S. in lawful status, it is required to reenter after international travel. Mixing up these concepts created enormous confusion.

H-1B New Petition vs. Extension: Where the Confusion Lies

The proclamation's broad language suggested that any new action – travel, renewal, even an amendment – might be treated as "new" and therefore subject to the $100,000 fee. That's why people panicked.

But if you look at page 5 of USCIS's Form I-129 instructions, a "new" petition is only one of several petition types, each with a specific purpose:

1. New H-1B petition (new employment): for a brand-new hire who has never worked for any cap-subject employer in H-1B status or is changing back to H-1B status from another nonimmigrant status.

2. Extension (continuation of previously approved employment without change): an extension in the same job with the same employer.

3. Change in previously approved employment: covering non-material changes, such as a job title update.

4. Amendment: covering material changes, such as a move to a new worksite.

5. Change of employer: when the worker transfers to a new company.

By USCIS's own framework, "new petition" is a specific, distinct filing type. Extensions, amendments, and employer changes are listed separately. The discrepancy arose because the proclamation talked broadly about "new petitions," while USCIS has long used a technical definition that excludes many routine filings.

Putting It Into a Real Example

Consider Anita, a software engineering manager in H-1B status:

• When Anita's employer first sponsors her, that filing is a new employment petition. Under the clarified rule, this is the kind of case where the $100,000 fee would apply if filed after 12:01 a.m. Eastern daylight time on Sept. 21, 2025.
• Three years later, Anita's employer files to extend the same role with the same company. That's a continuation of previously approved employment without change – not a "new petition" by USCIS's definition.
• Suppose Anita's title changes from "Engineering Manager I" to "Engineering Manager II," but the core duties remain the same. USCIS calls this a change in previously approved employment (non-material change). Again, it's not a "new petition."
• If Anita instead relocates from Seattle to Austin, the employer must file an amended petition to reflect the material change in worksite. Even then, USCIS instructions treat this as distinct from a "new employment" petition.
• Finally, if Anita moves to a different employer entirely, that company files a change of employer petition. This is generally treated separately from "new employment" because Anita has already been granted H-1B status and was counted against the cap. (In some cases, such as moving from a cap-exempt to a cap-subject employer, it may still be treated as new employment.) In most cases, though, the petition continues an existing H-1B classification rather than creating a brand-new one.

Each of these categories is defined in the I-129 instructions. Only the first scenario – initial employment in H-1B status – fits USCIS's technical definition of a "new" petition.

Why Lawyers Sounded the Alarm

Even immigration lawyers, who understand the technical categories, advised clients not to travel in the days after the proclamation. The reason wasn't ignorance; it was the fear of how a 212(f) order could play out at ports of entry. When the President invokes § 212(f), Customs and Border Protection has broad authority to refuse entry, and officers may apply a proclamation aggressively until higher guidance or a court intervenes.

The analogy to past travel bans is not perfect, but instructive: earlier versions of travel bans prohibiting entry to nationals of predominantly Muslim nations were blocked by courts for overreaching, but they were enforced at airports until injunctions were issued. That history shows both the power and the limits of 212(f): it can take effect immediately, but it can also be blocked on grounds such as discrimination, conflict with congressional intent in the INA, or arbitrary implementation by DHS. Until judicial guardrails are applied, the risk of being stopped at the airport is real. That's why lawyers, acting on prudence rather than technical definitions, told H-1B workers to stay put until agencies clarified.

What Employers Should Do Now

The $100,000 H-1B fee only applies to brand-new petitions filed on or after September 21, 2025, but employers should not treat it as a one-time compliance box. It changes the economics of hiring and requires strategic planning.

First, budget for the fee when recruiting foreign talent for the first time. The cost is large enough that it could influence whether an employer sponsors an H-1B at all, or whether they look for alternatives such as L-1 transfers or remote work arrangements abroad.

Second, understand that extensions, amendments, and most change-of-employer filings are not impacted. Employers who already have H-1B workers on staff should continue routine filings without interruption, but track USCIS's evolving guidance in case edge cases – like cap-exempt to cap-subject transfers – get pulled in later.

Third, take a hard look at workforce strategy outside the United States. Many employers who cannot bring key hires to the U.S. choose to place them with already established partner companies in countries such as Canada. One example is MobSquad, which works with U.S. technology companies to seamlessly "nearshore" international talent. They relocate skilled technology workers to Canada, handling immigration, payroll, employment, and compliance so that companies don't lose access to critical technology teams.

Others go further and set up subsidiary operations in countries like Canada, Mexico, Chile, Argentina, Poland, India, or Vietnam – jurisdictions that are increasingly popular for this purpose. My law firm's international business formation attorneys have helped many companies build out these structures over the years, and we'll be writing more on the pros and cons of this subsidiary strategy later this week.

One note of caution in the meantime however: doing this incorrectly can be catastrophic. The most common mistake is failing to establish proper IP ownership agreements before employees begin work overseas. In the cases we've seen go sideways, companies either didn't transfer IP rights properly to the parent entity, or they relied on inadequate local employment contracts that enabled their overseas employees to walk away with key technology, code, or trade secrets. One of our international lawyers says he has had clients cry in front of him only twice in his career, and both times it was because a company failed to structure its overseas hiring properly and essentially lost all of its intellectual property as a result.

The companies that treat this not just as a compliance hurdle but as a broader risk-management issue – budgeting properly, monitoring USCIS guidance, and carefully structuring global hiring – will be better positioned when the next policy change comes.

The Bottom Line on the $100,000 H-1B Fee (USCIS September 21, 2025, Proclamation FAQ)

The USCIS issued an FAQ on Sept. 21, 2025, which the White House and the State Department also echo, and which clarifies who the proclamation impacts:

• The $100,000 fee applies only to new H-1B petitions filed after 12:01 a.m. Eastern Daylight Time on Sept. 21, 2025.
• It is a one-time fee on submission of a new petition, not an annual or renewal fee.
• It does not apply to petitions filed before that date/time.
• It does not change the fees required for renewals, extensions, or amendments.
• It does not affect previously issued visas or prevent current H-1B holders from traveling in and out of the U.S.

Change-of-employer petitions are listed in USCIS's I-129 instructions as a separate category from "new employment," and longstanding practice treats them as outside the cap once a worker has already been counted. While the FAQ does not expressly address this scenario, the logic of the guidance suggests they are not impacted, though formal confirmation may still be forthcoming.

This is why the proclamation caused so much alarm: its sweeping entry-ban language collided with USCIS's far more nuanced petition categories. The new FAQ narrows that gap by confirming that the fee is targeted at first-time, brand-new H-1B petitions – not the routine filings that keep existing workers in status.

H-1B $100,000 Fee: Frequently Asked Questions

Who does the $100,000 H-1B fee apply to?

It applies only to brand-new H-1B petitions filed on or after September 21, 2025.

Does the $100,000 fee apply to extensions?

No. Extensions of existing employment are not considered "new petitions" and are not subject to the fee.

Does the fee apply to amended petitions or job title changes?

No. Amended petitions, such as worksite location changes or non-material title updates, are treated separately and are not subject to the fee.

What about change-of-employer petitions?

Generally no. Under longstanding USCIS practice and as suggested by the USCIS's September 21 FAQ, a change-of-employer petition is not treated as a brand-new filing and should not trigger the $100,000 fee. Once a worker has already been counted against the H-1B cap, the petition generally continues that status rather than creating a new one.

However, edge cases exist. For example, moving from a cap-exempt employer (such as a university) to a cap-subject employer (such as a private company) may be treated as new employment and potentially subject to the fee.

Does the $100,000 fee apply to H-1B cap-exempt employers (universities, nonprofits)?

Unclear. Historically, cap-exempt petitions have been treated differently, but USCIS has not issued specific guidance yet. Employers should watch closely for updates.

Does the new rule impact spouses or dependents (H-4 visas)?

No. The $100,000 fee is tied only to H-1B petitions. Dependent applications such as H-4s are unaffected.

Can current H-1B holders travel internationally after September 21, 2025?

Yes. Existing visas remain valid. The fee does not prevent current H-1B workers from leaving and reentering the United States.

Does the fee affect visas issued before September 21, 2025?

No. Petitions filed before 12:01 a.m. Eastern daylight time on September 21, 2025, are not subject to the new charge.

Will the $100,000 H-1B fee affect the lottery or cap selection process?

Indirectly. The lottery process itself has not changed, but the steep fee may cause some employers to reduce the number of registrations they submit.

Does the $100,000 fee apply to premium processing?

No. Premium processing is a separate USCIS service with its own fee. The new charge is in addition to existing costs.

Can employers pass the $100,000 H-1B fee on to workers?

Generally, no. Employers are required to pay most H-1B fees themselves. Passing the cost to employees could violate Department of Labor wage rules.

Is the $100,000 fee tax-deductible as a business expense?

In most cases, yes. For U.S. employers, the fee is treated as a legitimate cost of doing business. Employers should confirm details with their tax advisors.

Can the $100,000 H-1B fee be challenged in court?

Yes. Like earlier INA § 212(f) proclamations, the rule could face lawsuits arguing that it conflicts with congressional intent or is applied arbitrarily.

Conclusion

Our team is advising companies daily on how to navigate the $100,000 H-1B fee and broader workforce strategy. If you're evaluating options – from routine extensions to global hiring structures – contact us to discuss the safest path forward.

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