Following President Trump’s September 19, 2025 proclamation “Restriction on Entry of Certain Nonimmigrant Workers” requiring employers to pay a $100,000 fee for certain H 1B workers seeking to enter the United States, United States Citizenship and Immigration Services (“USCIS”) released additional guidance on October 20, 2025. This update, published on USCIS’s H-1B webpage, clarifies how and when the new fee applies but still leaves several key issues unresolved.
According to the USCIS update, the $100,000 fee applies only to H-1B petitions filed after 12:01 AM EDT on September 21, 2025. It is triggered when the beneficiary is abroad without a valid H-1B visa or when the petition requests or results in consular processing. USCIS confirms that if a petition is filed requesting a change of status, extension of stay, or amendment, and that request is approved, the fee does not apply. If USCIS denies the requested change or extension and instead approves the petition for consular notification, the fee is then required. This holds true even for renewal filings with the same employer if the case ends up in consular processing.
A key open question remains whether the existence of a valid H-1B visa in the beneficiary’s passport exempts them from the fee if a future petition is filed for consular notification during the visa’s validity period. USCIS has not yet confirmed the scope of this possible exception.
Travel concerns that followed the initial reporting have eased. USCIS states that the proclamation does not prevent current H-1B visa holders, or beneficiaries of an approved change or extension of status, from traveling. It also confirms that individuals granted an extension, change, or amendment inside the United States will not become subject to the fee if they later depart and apply for a visa based on that approved petition or reenter using a valid H-1B visa.
USCIS also outlined an extremely narrow national interest exception. The Secretary of Homeland Security may waive the fee only in rare cases where the beneficiary’s presence is deemed essential to US national interests, where no US worker is available, where the worker presents no security concern, and where imposing the fee would significantly harm US interests. Requests with supporting evidence must be submitted to H1BExceptions@hq.dhs.gov. No further criteria have been provided and there is no published timeline for adjudication.
Payment of the $100,000 fee must be completed through pay.gov before filing the petition, and proof of payment must accompany the filing or the case will be denied. Payment must match the beneficiary’s passport information, and fees are refundable if USCIS denies the petition. This raises a practical concern that USCIS has not addressed: If an employer files a petition requesting an extension of stay and USCIS unexpectedly denies the extension but approves the petition for consular notification instead, it is unclear how the employer could have paid the fee in advance as required.
USCIS has begun issuing Requests for Evidence (“RFEs”) in some cases asking for proof of the fee payment as a condition of approval, but there is still no published guidance explaining how employers should handle situations where the need for the fee only arises because of the agency’s decision on the requested action. Pending clarification, this remains a significant procedural gap and a point of concern.
Legal challenges are already underway. The US Chamber of Commerce filed suit on October 17, 2025 and a coalition including labor unions, religious institutions, and healthcare providers has also sued. We will monitor developments closely and update as court rulings or additional agency guidance become available.