On October 20, 2025, U.S. Citizenship and Immigration Services (USCIS) once again attempted to clarify to whom and when it would apply a $100,000 H-1B fee. As predicted in our prior alerts (“H-1B Fee” and “H-1B Clarifications”), the fee is already the subject of separate litigation in the U.S. District Court for the District of Northern California and the District of Columbia. While we remain of the opinion that the fee is unlawful and will not survive the aforementioned litigation, we provide below a summary of the USCIS most recent pronouncement.
To Whom Does the Fee Apply?
According to USCIS, the $100,000 fee applies to “new H-1B petitions filed at or after 12:01 a.m. Eastern Daylight Time on September 21, 2025, on behalf of beneficiaries who are outside the United States and do not have a valid H-1B visa.” This statement appears to suggest that the fee is only applicable to cap-subject H-1B beneficiaries who are outside the United States. Not quite.
The guidance further states that the proclamation applies if a petition filed at or after the September 21 deadline “requests consular notification, port of entry notification, or pre-flight inspection for an alien in the United States.” Read together, we infer the foregoing means that the fee does not apply to cap-subject H-1B beneficiaries moving from another status (F-1, J-1, O, L, etc.) and requesting a change, an amendment, or an extension of stay are exempt. The inverse, then, would also appear to be true. The $100,000 fee will apply to non-cap-subject H-1B petitions requesting anything other than a change, an amendment, or an extension of stay.
In addition, the $100,000 fee will also apply if the petitioner “requests a change of status or [an] amendment or extension of stay and USCIS determines that the alien is ineligible for a change of status or an amendment or extension of stay.” This is typically the case when the beneficiary has overstayed or otherwise violated the terms of their prior nonimmigrant status. It may also be the case when USCIS, sua sponte, determines that a beneficiary is ineligible for a change, an amendment, or an extension of stay.
To recapitulate:
- The fee applies to cap-subject H-1Bs outside the United States.
- The fee applies if the petition, cap subject or not, requests anything other than a change of status, an amendment, or an extension of stay.
- The fee applies if USCIS determines that the beneficiary, cap subject or not, is ineligible for a change of status, an amendment, or an extension of stay.
Where and When to Pay
Petitioners are directed to submit payment via pay.gov, following the instructions on the pay.gov website. The 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 provide evidence of an exception from the $100,000 payment from the secretary of Homeland Security. Those petitions lacking either evidence of payment or exception will be denied.
We recommend that employers contact their counsel to evaluate the availability of exceptions to the H-1B fee.