Updates Regarding Presidential Proclamation Impacting H-1B Workers: Latest USCIS Guidance

On October 20, 2025, USCIS issued additional information regarding the Presidential Proclamation issued on September 19, 2025, that has clarified several outstanding questions on when the new $100,000 fee is required.

The key takeaway is that if an H-1B petition requests a change of status, extension of stay, or amendment for an H-1B beneficiary who is already inside the U.S., the $100,000 fee will not be required to file the H-1B petition with USCIS even if filed on or after September 21, 2025. The fee will also not be required to apply for an H-1B visa at a US consulate or embassy or for readmission to the U.S. in connection with the approved H-1B petition.

More specifically, the USCIS guidance clarifies the following:

Who is not subject to the $100,000 payment:

• The Proclamation does not apply to any previously issued and currently valid H-1B visas, or any H-1B petitions submitted prior to September 21, 2025. In addition, the Proclamation does not prevent any holder of a current H-1B visa, or any beneficiary of an H-1B petition approved after September 21, 2025, from obtaining an H-1B visa at a U.S. consular post outside the U.S. or traveling in and out of the United States.
• The Proclamation also does not apply to an H-1B petition filed on or after September 21, 2025, that is requesting an amendment, change of status, or extension of stay for a beneficiary inside the United States, where the beneficiary is granted such amendment, change, or extension. Further, a beneficiary of such petition will not be subject to the payment if he or she subsequently departs the United States and applies for an H-1B visa outside the U.S. on the basis of the approved petition or seeks to reenter the United States on a current H-1B visa.

Who is subject to the $100,000 payment:

• The Proclamation applies to new H-1B petitions filed on or after September 21, 2025, on behalf of beneficiaries who are outside the United States and do not have a valid H-1B visa.
• The Proclamation also applies if an H-1B petition filed on or after September 21, 2025, requests consular notification or "Notify the Office" including port of entry or pre-flight petitions for Canadian citizens, even if the beneficiary is in the U.S. at the time the H-1B petition is filed.
• If an H-1B petition filed on or after September 21, 2025, requests a change of status, amendment, or extension of stay and USCIS determines that the alien is ineligible for the requested action (e.g., is not in a valid nonimmigrant visa status or if the employee departs the United States prior to adjudication of a change of status request), the Proclamation will apply and the payment must be paid according to the instructions provided by USCIS (see below).

How to pay the $100,000 payment:

• Petitioners can submit the required $100,000 payment using pay.gov, following the instructions on pay.gov at the following link: https://www.pay.gov/public/form/start/1772005176.

When to pay the $100,000 payment:

• Payment must be made prior to filing a petition with USCIS, as petitioners must submit proof that the payment has been scheduled from pay.gov or evidence of an exception from the $100,000 payment from the Secretary of Homeland Security at the time of filing the H-1B petition. Petitions subject to the $100,000 payment that are filed without a copy of the proof of the payment from pay.gov or evidence of an exception from the Secretary of Homeland Security will be denied.

Exceptions granted by the Secretary of Homeland Security:

• Exceptions to the $100,000 payment are granted by the Secretary of Homeland Security in the "extraordinarily rare circumstance" where the Secretary has determined that a particular individual's presence in the United States as an H-1B worker is: (1) in the national interest, (2) that no American worker is available to fill the role, (3) that the individual worker does not pose a threat to the security or welfare of the United States, and (4) that requiring the petitioning employer to make the payment on the alien's behalf would significantly undermine the interests of the United States.
• Requests for an exception must be submitted and approved prior to the filing of the H-1B petition, by emailing the request along with supporting documents to a designated email address at DHS headquarters.

Next Steps:

USCIS's latest guidance provides some welcome clarification and certainty regarding when the $100,000 fee is required. Employers now have more certainty that where the beneficiary is physically in the U.S., H-1B petitions requesting a change of status, extension of stay, change of employer, or an amendment, can be filed with USCIS without payment of the fee. Additionally, employees with an approved H-1B petition can travel internationally and apply for an H-1B visa at a US consulate or embassy outside the U.S. without having to pay the fee.

In addition, there are two federal lawsuits that have been filed that challenge the legality of the H-1B Visa Fee Proclamation, which may impact enforcement of the Proclamation if a preliminary injunction or other interim relief against the H-1B Proclamation is granted.

We remind clients that the H-1B Visa Fee Proclamation remains a fluid situation that could be subject to change with additional guidance from government agencies and/or litigation with little notice. We will continue to monitor the situation closely and employers should consult their Pryor Cashman attorney with any questions or concerns about the latest available information.

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Associate Evan Hey was a contributing author to this client alert.

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