Update 07/29/2026
On July 24, 2026, the First Circuit Court of Appeals refused the government’s request to stay the District Court’s order overturning the $100,000 H1B visa fee. The fee is therefore currently, and as of the date of this writing, not in effect. USCIS has indicated that it will follow the Court’s order, presumably while it seeks a stay from the U.S. Supreme Court, and that if it is later overturned it will collect payments.
Update 06/09/2026
On June 8, 2026, U.S. District Judge Leo T. Sorokin in Massachusetts struck down the Trump administration’s $100,000 H1B visa fee, ruling it an unlawful tax that unconstitutionally bypassed Congress and violated the Administrative Procedure Act. The nationwide injunction immediately vacated the fee. The government may appeal the decision, however, and no information is available as of this writing with regard to processing of petitions that previously would have been subject to the fee or seeking refunds for payments already made.
Original Post 10/22/2025
As discussed in prior posts, President Trump recently signed a proclamation restricting the entry of H1B nonimmigrant workers unless their petitions are accompanied by a new $100,000 fee. On October 20, 2025, USCIS issued additional guidance on the applicability of the fee to H1B petitions.
Key takeaways from the guidance
According to this guidance, the following H1B petitions filed on or after 12:01 am EDT on September 21, 2025 are subject to the fee:
- Petitions for beneficiaries who are outside the United States and do not have a valid H1B visa.
- Petitions requesting consular notification, port of entry notification, or pre-flight inspection for a beneficiary in the United States.
- Petitions requesting a change of status (COS), amendment, or extension of stay (EOS) where USCIS subsequently determines that the beneficiary is ineligible for that benefit.
According to the guidance, the following are NOT subject to the fee:
- Previously issued and currently valid H1B visas.
- Petitions filed prior to 12:01 am EDT on September 21, 2025.
- Holders of a current H1B visa, or a beneficiary of an approved petition, seeking to travel in and out of the United States.
- Petitions filed at or after 12:01 am EDT on September 21, 2025, that request an amendment, COS, or EOS for a beneficiary inside the United States where the beneficiary is granted that request. Such beneficiaries will not be subject to the fee if they subsequently depart the United States and apply for a visa based on the approved petition and/or seeks to reenter the United States on a current H1B visa.
The guidance provides an email address where petitioners can apply to the Secretary of Homeland Security for an exception to the fee. The Secretary must determine that a particular worker’s presence in the United States is in the national interest, that no American worker is available to fill the role, that the alien worker does not pose a threat to the security or welfare of the United States, and that requiring the petitioning employer to make the payment on the alien’s behalf would significantly undermine U.S. interests. The guidance also provides a pay.gov link where the $100,000 fee can be paid.
What this means for employers
USCIS’ guidance clarifies the applicability of the $100,000 fee, in that it appears to exempt future H1B cap cases where the beneficiary is in the United States in another valid status on the filing date. It also exempts petitions requesting an amendment, COS, or EOS for a beneficiary inside the United States where that request is granted.
However, it also confirms that the fee will apply in scenarios where a petition cannot be approved for a COS, EOS, or amendment and must instead be approved for “consular notification.” This creates heightened risk for H1B extensions filed close to expiration dates, when beneficiaries have gaps in lawful status, or when COS requests are denied. In such cases, the fee may be triggered.
From a compliance perspective, this places greater importance on early and timely filings, use of Premium Processing, and maintaining uninterrupted status.
Chris Beckerson © Jewell Stewart Pratt Beckerson & Carr PC 2026
