LATEST UPDATE: Oct 20, 2025, USCIS Implementation Plan for $100k H-1B Fee Released

Key Takeaways

• The $100K H-1B fee doesn’t apply to everyone, it only applies to new petitions for workers outside the U.S. who don’t already have an H-1B visa and to workers in the U.S. who do not file a change of status petition.
• If you’re already in the U.S., you’re likely exempt. Extensions, amendments, or changes of status filed within the U.S. stay fee-exempt when approved.
• Be cautious about travel while your H-1B is pending, leaving the U.S. before approval can convert your case into an consular filing, and that’s when the $100K fee would apply.
• Waivers will be extremely limited, the Secretary of Homeland Security can waive the fee only in exceptional, national-interest situations.

On September 19, 2025, President Donald Trump signed a proclamation titled “Restriction on Entry of Certain Nonimmigrant Workers”, proposing significant change to the H-1B visa program: employers sponsoring a new H-1B visa petition for a worker outside the U.S. will now be required to pay a $100,000 supplemental fee before filing the petition.

On October 20, 2025, USCIS provided clarity on how the proclamation would be implemented, the scenarios by which employers would be forced to pay and a link to a payment portal where employers could pay the fee.

Below is a breakdown of the key elements, expected impacts, clarifications, and potential risks and challenges.

USCIS Implementation Plan released Oct 20th, 2025

Clarity into how the Proclamation would be implement was released by USCIS on Oct. 20th, providing insight into how the proclamation would be brought into practice. This new update clarified that the proclamation applies to any new H-1B petition, filed after Sept 21st, 2025 "on behalf of beneficiaries who are outside the United States and do not have a valid H-1B visa". Additionally, the proclamation applies to a petition, filed after Sept 21st, 2025 that "requests consular notification, port of entry notification, or pre-flight inspection for an alien in the United States."

An important aspect to the implementation provided in this guidance is that the Proclamation also does not apply to a petition that is requesting an "amendment, change of status, or extension of stay for an alien inside the United States where the alien is granted such amendment, change, or extension".

This translates to the $100k fee likely not being required for the majority of current U.S. nonimmigrant visa holders, in the United States, who are able to apply for a H-1B visa as a Change of Status, remaining in the United States throughout their application.

Scope and Effective Date

• The new requirement took effect at 12:01 a.m. EDT on September 21, 2025.
• It applies to all H-1B visa petitions filed on behalf of workers, who at the time of filing:

1. are outside the United States (and would be filing as a Consular Notification petition)
2. are in the United States but are ineligible to file a Change of Status petition (due to some aspect of their immigration status)
3. are in the United States and are eligible to file a Change of Status petition but become ineligible to receive a Change of Status approval at some point during the petition filing process, (for example because they leave the U.S. after their petition has been filed but before it has been approved).

• The order will remain in effect for an initial 12-months, and a recommendation on whether an extension or renewal shall be made will be made within 30 days following the completion of the March, 2026 (FY 2027) H-1B lottery.

What the Sep 19th Proclamation Said

• Entry to the U.S. for H-1B workers will be restricted “except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000”.*
• An H-1B petition must be “accompanied” with the $100,000 payment for the petition to be considered.
• The Department of Homeland Security, (through U.S. CBP) and The Department of State (through USCIS) shall coordinate to enforce the new payment requirement.
• Employers must maintain documentation of remittance; the Department of State may verify payment during visa adjudication.
• Exemptions may be granted on a case-by-case basis, for instance if hiring in the national interest or in sectors critical to national security.
• The proclamation notes that the Department of Labor will begin revising prevailing wage standards, and that the Department of Homeland Security should prioritize high-wage, high-skilled H-1B beneficiaries. The latter of which has been codified as a Proposed Rule.

September 20th Clarifications by USCIS and the White House

Because of confusion in the immediate aftermath of the announcement, several clarifications were issued through USCIS and White House FAQ releases on September 20th:

• The new $100,000 fee does not apply to current H-1B holders. They can continue to leave and re-enter the U.S. as before and are not required to pay the fee for visa renewals.
• The proclamation is framed as a one-time fee, not an annual surcharge. Some early statements by officials had suggested it would be a recurring fee.
• It does not affect H-1B petitions filed before the implementation date (i.e., before 12:01 a.m. on September 21, 2025).
• The executive action is technically a proclamation on entry and visa issuance, rather than a law passed by Congress. Legal challenges are anticipated.

Likely Impacts

The 2026 (FY 2027) H-1B Lottery

According to USCIS Statistics from 2023 almost 50 percent of new H-1B visas requested Consular Notification. Should this proportion of applicants hold for the upcoming lottery, we can expect U.S. employers to be heavily disincentivized from submitting lottery entries on behalf of applicants abroad. This should have the effect of:

1. significantly reducing the number of applicant entries
2. materially increasing the odds of lottery selection for all U.S. based applicants in valid status, including F-1 (OPT and CPT), F-2, J-1, J-2, H-4, L-1, L-2, TN, and Cap-Exempt H-1B visa holders.

Employers & Corporate Sponsors

• Companies that frequently sponsor foreign talent from abroad (especially in tech, consulting, biotech, or STEM fields) will likely face a steep cost increase for international hires.
• The new fee may prompt some companies to re-evaluate whether to pursue foreign recruitment, invest more in domestic hiring, or shift some roles offshore entirely.

Foreign Applicants

• Prospective H-1B candidates who are currently abroad will see the barrier to entry dramatically raised.
• The petition may be denied if it is not accompanied by the $100,000 payment, unless a waiver or exemption is granted, these are expected to be limited.

Domestic (U.S. Based) Applicants

• Prospective H-1B candidates who are currently in the United States, and who file as a Change of Status, will not experience any change to their petitioning process. They may not be able to travel internationally until the case is approved.

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:

1. that a particular alien worker’s presence in the United States as an H-1B worker is in the national interest,
2. that no American worker is available to fill the role,
3. that the alien 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.

A very high bar!

Legal Risks, Challenges & Uncertainties

• As the $100,000 requirement is introduced via proclamation rather than statutory law, it may face lawsuits challenging its legality or constitutionality.
• Aspects of the policy are vague or internally inconsistent (e.g. waiver mechanisms), which may lead to legal or administrative challenges.
• The full rulemaking process (notice & comment, regulatory drafting) has yet to play out; many of the finer points will be determined later by agencies.
• Some states (e.g. California) have already considered legal action.

What Steps Employers & Applicants Should Consider

1. Budget and plan for the extra cost if future hiring will require overseas H-1B petitions.
2. Assess whether your roles could qualify for exemptions, especially in sectors like healthcare, research, critical infrastructure.
3. Continue to monitor regulatory developments, proposed rules, agency guidance, and litigation outcomes as these continue to alter key terms.
4. Consult immigration counsel to evaluate risks, compliance strategies, and waiver opportunities.

Bottom Line

The Trump administration’s proclamation introducing a $100,000 supplemental fee on new H-1B visa petitions may be one of the most significant attempts to change the U.S. high-skill immigration system in recent memory. While it aims to curb perceived abuses and shift incentives toward domestic hiring, it also raises profound questions about cost, competitiveness, and legal authority.

For employers, applicants, and the broader tech and scientific ecosystem, the next several months will be critical: agency rulemaking, litigation outcomes, and how exemptions are handled will determine how disruptive this change ultimately becomes.