Overview: On September 19, 2025, the White House issued a proclamation titled “Restriction on Entry of Certain Nonimmigrant Workers,” a sweeping policy directive that targets reforms to the H-1B visa program. Among its most notable provisions is the imposition of a $100,000 supplemental fee for certain H-1B petitions, effective September 21, 2025.
In the weeks since its release, USCIS has published official guidance clarifying how this fee will be applied, who it affects, and how it must be paid. In parallel, multiple lawsuits have been filed challenging the proclamation and its implementation. Below, we’ll go over what employers and visa applicants need to know now that implementation and litigation are both underway.
Who Is Subject to the $100,000 Payment? The $100,000 fee is not universal. It applies only to specific categories of new H-1B petitions filed on or after 12:01 a.m. EDT on September 21, 2025.
According to USCIS, the fee applies to:
- New H-1B petitions filed for beneficiaries outside the United States who do not currently hold a valid H-1B visa.
- Petitions that request consular notification, port of entry notification, or pre-flight inspection, regardless of whether the beneficiary is currently in the U.S.
- Petitions that request a change of status, amendment, or extension of stay, but where the beneficiary is found ineligible for the requested benefit (for example, due to a lapse in lawful status or departure before adjudication).
- Any H-1B that receives an I797B approval notice for consular notification.
Examples of cases where the fee applies:
- After filing an H-1B transfer, USCIS finds that the individual did not maintain their status at the time of filing and approves the H-1B petition for consular processing.
- An individual who had been sponsored for a H-1B petition but whose prior H-1B status had lapsed. In such circumstances, the individual will need to leave the United States to reapply either for admission or a new H-1B visa. In such circumstances, the individual will incur the fee.
- An employer files a petition requesting consular processing for an individual who previously held H-1B status and is now working outside the United States, who will enter the U.S. after approval.
- A CAP-exempt non-profit employer files an H-1B for a prospective new employee who is overseas.
- An employer files an H-1B petition after the person’s H-1B Cap registration was selected in the lottery and the individual is overseas.
The fee does not apply to:
- Petitions filed before September 21, 2025.
- Current H-1B holders inside the U.S. seeking a valid change of status, amendment, or extension, and whose petition is approved while they remain in the country.
- Beneficiaries who later travel internationally based on a valid, approved H-1B petition (as long as they were not subject to the fee when the petition was filed).
- H-1B Cap registration applications. While the new fee may apply to the substantive case filing, dependent on the circumstances, the fee is NOT due when submitting the H-1B Cap registration application.
Examples of cases where the fee does not apply:
- An employer files an H-1B extension for a data scientist currently in valid H-1B status who remains in the country throughout adjudication.
- An employer files an amendment to reflect a worksite change for an existing H-1B employee who never left the United States.
- A hospital extends an H-1B petition for a physician who has maintained lawful H-1B status continuously in the U.S.
- An employer files an H-1B Change of Employer for an individual who already holds valid H-1B status and is in the United States.
- A researcher working at a U.S. university with valid H-1B status travels abroad temporarily and returns using the same visa; the original petition was not subject to the fee, so no new fee is required.
- An employer files an H-1B CAP change of status case for a student on F-1 OPT and the USCIS approves the case, granting the individual the change of status.
- An employer filed an H-1B petition before September 21, 2025, even if USCIS adjudicates it later; it remains exempt from the surcharge.
Employers are required to:
- Use pay.gov to make the payment.
- Include proof of scheduled payment (or approved exemption from DHS) with the initial petition filing.
USCIS has made clear that any petition subject to the proclamation that is filed without this documentation will be denied. However, according to the language currently published on the official pay.gov payment page, the $100,000 fee is refundable if the petition is denied. Petitioners should carefully assess eligibility before filing, especially when the beneficiary is transitioning between statuses or potentially traveling.
Are There Any Exceptions to the Fee? Yes, but they are rare and narrowly defined. Under the proclamation, the Secretary of Homeland Security may grant an exception to the $100,000 payment only in “extraordinarily rare” circumstances, including:
- When the alien’s presence is in the national interest.
- When no American worker is available to fill the position.
- When the alien poses no threat to U.S. security or welfare.
- When requiring the fee would significantly undermine U.S. interests.
Employers seeking an exception must submit requests to: H1BExceptions@hq.dhs.gov.
There is currently no public timeline for review or adjudication of these requests, and the standard remains high.
Impact on Travel and Visa Processing: Despite the proclamation’s restrictive tone, H-1B holders with valid status and visas are not barred from reentry or international travel. USCIS has confirmed:
- Current H-1B visa holders may continue to travel and reenter the U.S. with valid documentation.
- The proclamation does not revoke existing H-1B visas or approved petitions filed before the effective date.
However, consular processing may involve additional scrutiny, particularly where the new fee applies or is otherwise deemed to apply by a State Department official. Employers should be prepared to provide payment documentation at visa interviews when applicable.
Pending Litigation: Legal challenges to the $100,000 H-1B fee are already underway. On October 16, 2025, the U.S. Chamber of Commerce filed a lawsuit in federal court, alleging that the proclamation represents a “plainly unlawful” overreach of executive authority that violates both the Administrative Procedure Act and existing immigration statutes. The Chamber argues the fee will “inflict significant harm on American businesses” and make the H-1B program economically unviable, particularly for industries that depend on global talent in technology, engineering, and education.
This lawsuit follows an earlier action filed on October 3, 2025, by a coalition of employers and advocacy groups representing foreign workers. Both suits seek injunctions to block implementation of the $100,000 payment requirement pending judicial review.
According to the Chamber’s complaint, Congress never authorized the imposition of such a fee, and existing law already provides mechanisms, such as the Labor Condition Application and H-1B wage rules, to prevent misuse of the program. The plaintiffs contend that the administration’s move to impose a fee many times higher than those established by statute constitutes an abuse of executive discretion and bypasses the APA’s rulemaking process.
While the White House has defended the policy as a necessary safeguard against “systemic abuse” of the H-1B program, business leaders warn it could discourage innovation, slow economic growth, and prompt companies to move high-skilled jobs overseas. The outcome of these lawsuits will determine whether the proclamation remains enforceable or is enjoined by the courts.
How the Fee Normally Would Be Created (and Why This Is Different): Normally, when the government wants to create or raise a visa or immigration-related fee, Congress must authorize it, and the agency must go through a public notice-and-comment process. This includes publishing a proposed rule, explaining why the fee is needed, giving the public time to comment, and then issuing a final rule based on any such feedback. The idea is to make sure fees are justified, transparent, and tied to actual costs. The $100,000 H-1B fee, however, skipped all of that. It was created almost overnight through a presidential proclamation rather than through the usual open rulemaking. No public input was taken, no cost analysis was shared, and the fee took effect immediately, which is why many legal experts and businesses see it as an unprecedented move in violation of the APA.
What Employers Should Do Now: Employers should take proactive steps to ensure compliance:
- Identify impacted cases. Focus on new hires outside the U.S. and petitions involving consular processing or status complications.
- Review timing and travel plans. A petition may become subject to the fee if the beneficiary departs the U.S. before approval.
- Budget accordingly. The $100,000 fee is in addition to standard H-1B filing and legal fees.
- Educate HR and legal teams. Ensure decision-makers understand the distinctions between eligible and ineligible cases.
- Monitor litigation. The pending lawsuits could temporarily halt or modify enforcement; stay informed through official USCIS updates and reputable news sources.
- Prepare exception documentation. If a role may qualify for a national interest exception, assemble evidence early.
- Strategize with immigration counsel on options that may be available to the company to recruit highly skilled professionals who may not be subject to the fee.
Employers with questions about how the H-1B proclamation or the pending litigation may affect their workforce or upcoming filings should consult experienced immigration counsel to ensure compliance and minimize risk.
For now, employers must proceed carefully, using USCIS’s updated guidance to assess petition strategies while tracking developments in federal court. Given the substantial financial implications, a case-by-case evaluation, especially for consular cases, remains essential.
Looking Ahead: While the $100,000 fee is being implemented as a temporary measure under the proclamation, its impact is already being felt across industries that rely on international talent. The policy faces multiple legal challenges that could determine its future validity, and further regulations on wage levels and visa eligibility are expected.