Immigration Law Insights

On September 19, 2025, the White House issued a Presidential Proclamation purporting to add a new $100,000 fee to certain H-1B applicants. Ambiguity in the Presidential Proclamation and subsequent guidance issued by USCIS, CBP, and the Department of State left many questions unanswered. Additional guidance issued by USCIS on October 20, 2025, has provided some clarity and potential good news for some H-1B employers and beneficiaries. Below are some frequently asked questions answered by the updated guidance. 

1. Who is subject to the fee?: The new fee applies in a number of different scenarios. First, the new fee applies to beneficiaries of an H-1B petition filed on or after the effective date of the Proclamation (September 21, 2025) who are outside the United States and do not have a valid H-1B visa. Second, the new fee applies to beneficiaries of an H-1B petition filed on or after the Proclamation’s effective date if the petition requests consular notification, port of entry notification, or pre-flight inspection and the foreign national is inside the United States. Third, if an H-1B petition requests a change of status, amendment, or extension, and the change of status, amendment, or extension request is denied—meaning the foreign national would need to exit the United States and obtain a new visa to seek H-1B status—the new fee applies.
2. Who is not subject to the fee? The new fee does not apply to any H-1B petitions filed on or before the Proclamation’s effective date. The new fee is also inapplicable to H-1B petitions filed after the effective date requesting an amendment, change of status, or extension of status for a foreign national inside the United States, so long as the change of status, extension, or amendment requirement is ultimately approved. 
3. Will the FY2027 Cap Filings be subject to the fee?: USCIS has not issued any guidance indicating FY2027 Cap Filings will be treated any differently than other petitions. As a result, FY2027 Cap Filings with an approved change of status request should not be subject to the new fee while petitions requesting consular notification would be subject to the new fee.
4. Does the new fee apply to beneficiaries of an approved H-1B change of status, extension, or amendment petition if they exit the United States after approval?: The new guidance confirms a beneficiary of these types of petitions will not be subject to the new fee if he/she departs the United States after approval and applies for a visa based on the approved petition or seeks to reenter the United States on a current visa.
5. What are the criteria for exemption from the new H-1B fee?: The Proclamation confirmed fee exemptions would be available for H-1B cases in the national interest.  The updated guidance is still somewhat ambiguous in this area.  According to USCIS, exemptions will be granted in circumstances where the Secretary determines (1) a foreign national’s presence is in the national interest; (2) no American worker is available to fill the role; (3) the foreign national does not pose a threat to the security or welfare of the United States; and (4) requiring the petitioning employer to make the payment on the foreign national’s behalf would significantly undermine the interests of the United States.  Interestingly, the new guidelines appear geared towards an individual application, while the Proclamation confirmed exemptions could be available on an individual, company, or industry basis. 
6. How do employers apply for a national interest exemption?: USCIS has established an email address (H1BExceptions@hq.dhs.gov) for exception requests. USCIS’ guidance does not indicate an exemption request requires a filing fee but also does not include a timeline for processing. Employers seeking an exemption should file the exemption request early to allow for necessary processing.
7. When and how do employers pay the fee?: Initially, the new guidance confirms H-1B petitioners pay the new fee using gov by following the instructions available here: https://www.pay.gov/public/form/start/1772005176. Payments must be made prior to filing a fee subject petition and USCIS will require proof of payment at the time of filing.  Importantly, petitions subject to the $100,000 fee that are filed without proof of payment or confirmation of an exception are subject to denial rather than rejection. The distinction between denial and rejection is important because an employer would theoretically lose all filing fees submitted with the petition if the petition were to be denied rather than rejected. 
8. Is the new rule being challenged?: There are currently two pending lawsuits seeking to enjoin the new fee rule. The Burr Immigration team is continuing to follow both lawsuits and will provide updates as they are available.
9. What are the implications of the new guidance?: The new guidance should alleviate the concerns of some H-1B employers.  In particular, cap exempt petitioners that regularly hire F-1 students can breathe a sigh of relief knowing change of status petitions should not be impacted by the new fee. While the new guidance provided some answers, many questions remain.  For example, it is still unclear how the national interest exception may apply across industries or to employers. The new guidance may also result in additional legal challenges given the national interest exemption criteria seem to require a test of the labor market, which is not supported by current H-1B statutes or regulations. 

The Burr & Forman immigration team will continue to monitor for updates and guidance from DHS.