Background
On September 19, 2025, the President issued a Proclamation under sections 212(f) and 215(a) of the Immigration and Nationality Act (INA) imposing a $100,000 supplemental fee on certain H-1B petitions. The measure, effective 12:01 a.m. EDT on September 21, 2025, was announced as part of broader reforms intended to prioritize domestic employment opportunities and reduce reliance on foreign labor.
In response, U.S. Citizenship and Immigration Services (USCIS) has now published official guidance outlining when the $100,000 H-1B proclamation fee applies, who must pay it, and what exemptions may be available.
This article summarizes the USCIS clarification, examines its legal framework, and outlines compliance considerations for employers and petitioning entities.
1. Applicability of the $100,000 Payment
Under the proclamation and USCIS guidance, the surcharge applies only when both of the following conditions are met:
- The H-1B petition is filed on or after September 21, 2025; and
- The beneficiary fits into one of the qualifying scenarios described below.
Scenario A – Beneficiary Outside the United States
The $100,000 payment applies where the beneficiary is physically outside the United States at the time of filing and does not hold a valid, unexpired H-1B visa in their passport.
This includes both cap-subject and cap-exempt H-1B petitions. The fee must be remitted before filing, and proof of payment must accompany the petition.
Scenario B – Consular or Port-of-Entry Notification
Even if the beneficiary is in the United States, the surcharge applies when the petition requests:
- Consular notification,
- Port-of-entry (POE) notification, or
- Pre-flight inspection approval.
In these cases, the petition will ultimately result in the individual seeking visa issuance abroad, triggering applicability of the proclamation fee.
Scenario C – Retroactive Application
If the petition seeks a change of status, amendment, or extension and USCIS later determines the beneficiary is ineligible for in-country adjudication (for example, due to a lapse of status), or if the beneficiary departs the United States before adjudication and pursues consular processing instead, the fee may be assessed retroactively.
2. Who Is Not Subject to the $100,000 Payment
The surcharge does not apply to the following categories:
- Petitions filed before 12:01 a.m. EDT on September 21, 2025.
- Petitions where the beneficiary already holds a valid, unexpired H-1B visa, even if located abroad.
- Amendments, changes of status, or extensions filed by employers on behalf of beneficiaries physically present in the United States in valid non-immigrant status (e.g., F-1, H-1B, L-1, O-1).
- Beneficiaries who subsequently travel abroad and return using a still-valid H-1B visa and approved petition are not required to pay the surcharge.
If, however, a petition originally filed as an in-country case later converts to a consular case (due to travel or status issues), the fee may become payable at that stage.
3. Payment Procedure
USCIS directs that all payments be made electronically through Pay.gov using the designated form linked in the official instructions:
Key points regarding payment:
- Payment must be completed prior to submission of the H-1B petition.
- The filing package must include proof of successful payment or proof of an approved exception.
- Petitions filed without payment confirmation or valid exemption documentation will be rejected or denied.
- The surcharge is a one-time payment per petition, not an annual or recurring fee.
4. Exception Requests under the “National Interest” Standard
USCIS has confirmed that exceptions to the $100,000 payment will be extremely rare and evaluated solely at the discretion of the Secretary of Homeland Security.
An exception may be granted only if all the following are satisfied:
- The individual’s employment is in the national interest of the United States;
- No qualified U.S. worker is available to perform the duties;
- The individual poses no threat to national security or public welfare; and
- Imposing the surcharge would significantly undermine U.S. interests.
Employers seeking an exception must submit a detailed request, supported by evidence and legal argument, via email to:
H1BExceptions@hq.dhs.gov
Petitioners are encouraged to include a detailed justification outlining the individual’s contributions to national priorities such as defense, healthcare, technology innovation, or critical infrastructure.
5. Continuing H-1B Program Requirements
The proclamation fee does not replace or modify existing H-1B eligibility or compliance obligations. Employers must still satisfy all regulatory requirements, including:
- A certified Labor Condition Application (LCA) from the U.S. Department of Labor.
- Proof that the offered role qualifies as a specialty occupation under 8 C.F.R. § 214.2(h)(4).
- Documentation that the beneficiary meets minimum education and/or experience requirements.
- Compliance with all wage, posting, and public access file obligations.
Employers should also maintain meticulous documentation of the payment process, correspondence, and any exception requests for audit purposes.
6. Practical Considerations for Employers
A. Assessing Applicability
Before filing, employers must determine whether the beneficiary’s location and visa status at the time of filing trigger the surcharge.
B. Coordinating Payment and Filing
The payment must be processed before or concurrently with the petition. The payment receipt should be clearly labeled and attached to the Form I-129 submission package.
C. Monitoring Status Changes
Employers should carefully monitor any status lapse or international travel by the beneficiary before adjudication, as such events may convert an exempt case into a surcharge-eligible one.
D. Exception Requests
Given the high threshold for “national interest” exceptions, petitioners should prepare a robust evidentiary record if pursuing such relief. Supporting evidence might include federal agency endorsements or documentation of the employee’s essential contribution to critical projects.
E. Compliance Documentation
Maintain payment receipts, proof of timely filing, and all USCIS correspondence for at least five years, consistent with best practices for DOL and DHS record retention.
7. Litigation and Policy Outlook
Two federal lawsuits have already been filed challenging the legality of the proclamation, arguing that such a fee constitutes a tax not authorized by Congress. Until judicial or legislative action alters the policy, USCIS will continue enforcing the surcharge for qualifying petitions filed on or after September 21, 2025.
Employers are advised to monitor subsequent DHS or USCIS policy updates, as further procedural instructions and clarifications may be published.
8. Key Takeaways
- The $100,000 H-1B proclamation fee applies mainly to beneficiaries outside the United States or cases requesting consular processing.
- Change-of-status, extension, or amendment petitions filed for individuals already in lawful U.S. status remain exempt.
- Proof of payment via Pay.gov must accompany every new petition subject to the proclamation.
- Exception requests will be narrowly granted under a stringent national interest test.
- All existing H-1B program requirements remain fully applicable.
Conclusion
The introduction of the $100,000 proclamation fee represents one of the most significant cost increases in the history of the H-1B program.
While its scope is limited to a specific subset of petitions, its financial and procedural implications are profound.
Employers should act promptly to evaluate pending and future filings, ensure compliance with the new payment mandate, and consult with qualified immigration counsel before submission.
Given ongoing litigation and potential regulatory refinements, continued vigilance and timely legal advice remain essential.
