USCIS Issues Additional Clarifications To The Presidential Proclamation Imposing A $100K Fee On New H-1Bs

President Trump's September 19, 2025 Proclamation, "Restriction on Entry of Certain Nonimmigrant Workers" imposed a new $100K fee on certain H-1B petitions filed after on or after September 21, 2025. The Proclamation suggested that specific companies and industries could be exempted from the fee on a "national interest" basis. Following feedback from affected industries, the administration issued clarifications suggesting that the Proclamation would not apply to any new petitions filed on behalf of individuals who already possessed an approved H-1B petition as of September 21. However, major points of ambiguity remained, including whether the fee would be imposed on candidates to be registered in the FY 2027 H-1B lottery .

The Latest Development

According to new USCIS guidance, issued October 20, 2025, the following classes of H-1B petitions filed on or after September 21, 2025 are subject to the $100K fee:

• Petitions filed on behalf of beneficiaries who, at the time of filing, are outside the U.S. and do not already possess a valid H-1B visa; and
• Petitions requesting a "consular notification", regardless of whether the beneficiary is physically within the U.S. at the time of filing. [Note: Consular notification sends the H-1B approval to a U.S. consulate abroad where the employee must apply for a visa stamp].

Also, pursuant to this guidance, the following petitions are outside the scope of the Proclamation:

• Petitions requesting an H-1B change of status and/or extension of stay.
• Petitions requesting an amendment or a change of employer, so long as a consular notification request is not included.

Finally, USCIS clarified that:

• Beneficiaries of non-impacted petitions may travel outside the U.S., apply for visas as needed, and return without needing to pay the fee; and
• Payment of the $100K fee is a prerequisite to filing a Proclamation-subject H-1B petition. The employer must submit the fee through the Treasury's Pay.gov portal and include proof of payment with the petition.

Ambiguity Remains

Significant questions remain concerning the Proclamation's applicability. For example, it is currently unknown whether a new petition requesting consular notification on behalf of an individual who already possesses a valid H-1B visa would be subject to the fee.

Another area of ambiguity involves fee exemption eligibility. While the plain language of the Proclamation states that exemptions for specific companies and industries will be available by application, the new USCIS guidance appears to provide a much narrower scope of exemption eligibility. Specifically, under the guidance, exemptions will be "extraordinarily rare" and granted according to the following stringent criteria:

• The alien worker's presence in the United States as an H-1B worker is in the national interest
• No American worker is available to fill the role
• The alien 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.

The evidence USCIS expects employers to furnish to meet this standard is yet unknown. The agency has provided an email address where employers may lodge their requests for a fee exemption in advance of filing the H-1B petition.

Impact of the Proclamation

The Proclamation will likely discourage large firms that regularly bring workers from abroad on H-1B visas from filing petitions. This could be a silver lining for smaller U.S. companies, in that there could be less competition overall for the limited number of H-1Bs made available each year.

A class action suit challenging the Proclamation was filed in September seeking declaratory and injunctive relief. It is expected that the plaintiffs will seek a temporary stay.

For now, employers should expect a high degree of uncertainty and a fluctuating state of affairs around the H-1B program until the pending litigation resolves. Until then, clients who are interested in employing H-1B workers are encouraged to consult with OGC's immigration team to ascertain the applicability of the $100K fee to each potential petition, develop strategies to remove petitions from the Proclamation's scope, and/or assess the feasibility of requesting a fee exemption.

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