On September 19, 2025, the Trump administration issued a proclamation imposing a supplemental $100,000 fee on H-1B petitions, effective September 21, 2025.   On October 20, 2025, USCIS issued  implementing guidance, advancing its interpretation of when the fee is required. The following summarizes the USCIS guidance.

H-1B Petitions Subject to the $100,000 Fee

According to USCIS, the $100,000 fee applies to:

• • New H-1B petitions filed on or after September 21, 2025 for beneficiaries who are outside the U.S. and who do not hold valid H-1B visas.
• • Petitions filed on or after September 21, 2025 requesting consular or port-of-entry notification (including pre-flight inspection) for beneficiaries currently in the U.S.
  • · Note:  It is unclear whether the $100,000 fee will be imposed on petitions requesting consular notification when the foreign national is outside of the U.S., but the foreign national also currently holds a valid H-1B visa.
• • Petitions filed on or after September 21, 2025 requesting a change of status, amendment, or extension of stay if USCIS determines that the beneficiary is ineligible for the requested change or extension of status (for example, if the worker is not in valid status or departs before adjudication). In such cases, the requirement to pay the $100,000 fee is triggered.
  • · It is not clear whether the beneficiary of such a petition who also holds a valid H-1B visa would be subject to the fee.

According to USCIS, the proclamation does not apply to:

• • Any previously issued and currently valid H-1B visa holder.
• • H-1B petitions filed before September 21, 2025.
• • H-1B petitions filed on or after September 21, 2025 where the petition requests an amendment, change of status, or extension of stay for a foreign national already in the U.S. and the amendment, change of status, or extension of status request is approved.  Moreover, beneficiaries of such petitions are also exempt from the fee if they later travel and reenter the U.S. on the approved petition.
  • · This would seem to include beneficiaries of H-1B cap petitions filed pursuant to the FY2027 H-1B lottery.

Payment Procedure

Employers must pay the $100,000 fee before filing the H-1B petition with USCIS. Payment must be made through pay.gov, and proof of payment (or proof of grant of an exception, per below) must be included in the H-1B filing.  Notably, the guidance does not address the scenario above, in which an employer files a petition on or after September 21, 2025 that includes a request for an amendment, change of status, or extension of status, and the request for change or extension of status is denied during the course of adjudication. In this instance, presumably the employer would need to make the payment upon demand, after filing the H-1B petition.

Petitions subject to the fee that lack proof of payment or petitions that do not fall within an exception will be denied.

According to the form for fee payment, if an employer pays the $100,000 fee and the petition is subsequently denied, the $100,000 fee will be refunded.

Exceptions from the Fee

The Department of Homeland Security may grant exceptions only in extraordinarily rare cases where it is determined that:

• • The H-1B worker’s presence serves the national interest;
• • No qualified U.S. worker is available;
• • The worker poses no threat to U.S. security or welfare; and
• • Requiring payment would significantly undermine U.S. interests.

Notably, the exception requirement articulated above by USCIS exceeds the standard for an exception articulated in the proclamation itself, which merely says that exceptions may be available if the foreign national’s work is in the national interest and does not pose a threat to the U.S. Additionally, USCIS guidance appears focused on individual requests and does not address how a company or industry could obtain an exception, as suggested in the proclamation.

Employers requesting an exception from the fee may do so by emailing the request together with  supporting evidence to the Department of Homeland Security in advance of filing of a petition. The guidance does not outline the type of evidence that would satisfy the requirements for an exception, including how employers can show that there are no qualified U.S. workers available, as such a showing is generally not a requirement for an H-1B petition.

Challenges to the Proclamation

The USCIS impending guidance addresses some practical questions raised by the proclamation, but, as noted above, leaves many questions unanswered while raising new ones.  Arguably, both the proclamation and the USCIS guidance impose requirements on H-1B petitions that far exceed the current statutory and regulatory standard. To date, two lawsuits have been filed challenging the proclamation as unlawful and seeking a preliminary injunction to block its implementation.  Van Der Hout, LLP is monitoring this closely, and will provide updates as they become available. In the interim, for guidance specific to your case, please contact your designated Van Der Hout representative.