Demystifying The Mystifying New $100,000 H-1B Fee

On September 19, 2025, the Trump administration issued an unexpected executive order that imposed a $100,000 per petition fee for certain H-1B petitions. While the order provided few details and caused a great deal of panic, U.S. Citizenship and Immigration Service (USCIS) has issued a clarification that attempts to clarify the extent of the H-1B order. The USCIS clarification indicates that the $100,000 H-1B fee only applies to an H-1B petition filed with USCIS on or after 12:01 a.m. eastern daylight time on September 21, 2025, where one of the two following circumstances exists:

Situation 1:

1. The beneficiary of the petition is physically located outside of the United States; and
2. The petition requests that USCIS takes one of following actions if the petition is approved:
   • Consular notification;
   • Port of entry notification; or
   • Pre-flight inspection notification.

Situation 2:

1. The beneficiary of the petition is determined by USCIS to not be eligible for:
   • An extension of H-1B status while remaining in the United States;
   • A change of status to H-1B while remaining in the United States; or
   • An amendment of H-1B status while remaining in the United States.
2. And the beneficiary of the petition must therefore first depart the United States to either obtain an H-1B visa or seek readmission into the United States to obtain H-1B status.

USCIS has further recently clarified that the new $100,000 H-1B fee does not apply to:

1. An H-1B worker who holds a previously issued and currently valid H-1B visa.
2. An H-1B petition submitted prior to 12:01 a.m. eastern daylight time on September 21, 2025.
3. An H-1B petition submitted on or after 12:01 a.m. eastern daylight time on September 21, 2025, where USCIS determines that the beneficiary of the petition is eligible for:
   • An extension of H-1B status while remaining in the United States;
   • A change of status to H-1B while remaining in the United States; or
   • An amendment of H-1B status while remaining in the United States.

USCIS additionally recently clarified that a beneficiary of a petition described above as not subject to the $100,000 H-1B fee will not be considered to become subsequently subject to the fee if he or she departs the United States and applies for a visa based on the approved petition and/or seeks to reenter the United States.

Petitioners who do not fall into one of the fee-exempt categories listed above may still request a specific exemption from the $100,000 H-1B fee by providing to the Secretary of Homeland Security that a particular alien worker's presence in the United States as an H-1B worker is in the national interest; that no American worker is available to fill the role; that the alien worker does not pose a threat to the security or welfare of the United States; and that requiring the petitioning employer to make the payment on the alien's behalf would significantly undermine the interests of the United States. Petitioning employers who believe that they are able to satisfy what USCIS calls an "extraordinarily rare circumstance" may seek the exception by sending their request and all supporting evidence to H1BExceptions@hq.dhs.gov. USCIS has thus far not provided any further details regarding what criteria the agency will consider when determining whether any petitioning employer has met any of these criteria.

In circumstances where the new $100,000 H-1B fee applies, a fee payment must be made, or an exemption must be granted, prior to filing a petition with USCIS. 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.

To date, two separate lawsuits have been filed in federal court to challenge the validity of the executive order imposing the new $100,000 H-1B fee. Additionally, there continues to be many efforts by various groups to get the Trump administration to cancel or modify applicability of the $100,000 fee. Employers should therefore continue to watch for potential additional changes to the $100,000 H-1B fee.

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.