USCIS Provides Further Updates To Trump Proclamation That Requires A $100,000 Fee For H-1B Workers Entering The United States

On October 20, 2025, US Citizenship and Immigration Services (USCIS) posted an update on its website regarding the September 19, 2025 Presidential Proclamation that purports to impose a $100,000 fee for H-1B workers who need to enter the United States. The update clarifies which H-1B petitions are subject to the $100,000 fee. This requirement will take effect for 12 months, until September 21, 2026. The stated rationale in the Proclamation is that there has been "systemic abuse" of the H-1B program.

Background

As discussed in our prior alert, on September 19, 2025, President Trump issued a Proclamation titled "Restriction on Entry of Certain Nonimmigrant Workers." This Proclamation has conflicting language, but initially appeared to require the payment of an additional $100,000 fee for any H-1B worker who entered the United States as of 12:01 am on Sunday, September 21.

On Saturday, September 20, USCIS Director Joseph Edlow issued a Memorandum that clarified and limited the impact of the Proclamation. The USCIS Memorandum created added confusion regarding which H-1B petitions were subject to the new $100,000 fee.

October 20, 2025 Update

The USCIS update provides needed clarification, and confirms that the $100,000 fee is only applicable to "new" H-1B petitions filed on or after September 21, 2025:

• For beneficiaries who are outside the United States and do not have a valid H-1B visa; or
• For any H-1B petition that requests consular notification, port of entry notification, or pre-flight inspection for a beneficiary who is in the United States.

The $100,000 fee does not apply to any H-1B petitions for beneficiaries:

• Who have an H-1B visa or an approved H-1B petition submitted prior to September 21, 2025; or
• Who are in the United States and are being sponsored for an H-1B amendment, change of status, or extension of stay.

Based on a plain reading of the USCIS update, the $100,000 fee also does not apply to a beneficiary who has an H-1B visa issued prior to September 21, 2025 or an approved H-1B petition that was filed prior to September 21, 2025.

Importantly, an H-1B petition filed for an amendment, change of status, or extension of status for a beneficiary who is in the US will become subject to the $100,000 fee if:

• The beneficiary is found by USCIS to have failed to maintain lawful status and is ineligible for a change of status or extension of status; or
• The beneficiary departs the US and invalidates the change of status or extension of status request.

Payment of the $100,000 Fee

USCIS requires payment through its Pay.gov secure payment site, and proof of payment must be submitted with the initial H-1B petition filing to USCIS. If the petition is filed without proof of payment or proof of an exception, the petition will be denied by USCIS without a Request for Evidence (RFE).

Exceptions to the $100,000 Fee Based on National Interest

The Proclamation indicates that the $100,000 fee does not apply to H-1B workers whose work "is in the national interest and does not pose a threat to the security or welfare of the United States."

The USCIS website update states that these exceptions will be "extraordinarily rare" and will require a showing that:

• The H-1B worker's employment is in the national interest;
• No American worker is available to fill the role;
• The H-1B worker does not pose a threat to the security or welfare of the United States; and
• Requiring the petitioning employer to make the payment on the alien's behalf would significantly undermine the interests of the United States.

Numerous outstanding questions remain regarding the scope of the national interest exceptions and the evidence required to qualify for an exception.

Requests for National Interest Exemptions with supporting evidence must be submitted to [email protected] in advance of an H-1B petition filing to USCIS.

Impact of Proclamation

The Proclamation and the recent USCIS update confirm the categories of H-1B petitions that require the $100,000 fee.

Because the $100,000 fee would apply to an H-1B beneficiary who has been deemed by USCIS to have not maintained lawful status, it is critical that H-1B beneficiaries and their employers are vigilant in ensuring that individuals do not violate their lawful status in the US. A person may be deemed to have violated their lawful status in the following circumstances:

• Performing work for an employer that they are not eligible to work for based on their visa classification;
• Receiving income through self-employment;
• H-1B or E-3 workers working at a different location that is not listed on their H-1B or E-3 petition;
• Material changes to employment that are inconsistent with the current visa petition, such as a reduction in pay, reduction in hours, or significant change to job duties.

Judicial Challenges to the Proclamation

At least two lawsuits have been filed in federal court requesting that the Proclamation be enjoined and vacated. USCIS fee increases generally must be implemented either by publication in the Federal Register or by the implementation of new laws. This dramatic fee increase, issued through a Proclamation, could likely result in the Proclamation's implementation being delayed or vacated by a federal court.

Conclusion

Petitioners filing new H-1B petitions should consult with immigration counsel prior to filing. In addition, H-1B petitioners and beneficiaries should ensure that they have maintained lawful status and do not mistakenly subject themselves to the $100,000 fee.

Please contact a member of the Mintz Immigration Team for more information: https://www.mintz.com/industries-practices/immigration

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.