Originally Posted 9/20/2025 | Last Updated 6/13/2026

Note: This is a rapidly evolving topic. Check back often for updates and consult a licensed attorney for direct guidance.

CURRENT STATUS: IN EFFECT

Latest Update: On June 8, 2026, a federal district court in Massachusetts vacated the USCIS policy implementing the $100,000 H-1B fee created by the Presential Proclamation in September 2025, formally declaring the implementation policy to be unlawful under both the Administrative Procedure Act and the U.S. Constitution. As a result of that decision, USCIS was not permitted to collect the $100,000 fee from H-1B employers. However, the government has since requested a stay of that decision while the appeals process is ongoing.

On June 12,2026, the Court granted an administrative stay pending a decision by the U.S. Court of Appeals for the First Circuit, so long as the government files its motion no later than June 18, 2026. This administrative stay allows the government to continue collecting the $100,000 fee for the time being.

A significant unresolved issue concerns consular notification petitions filed between June 8 and June 11, when the vacatur was in effect. USCIS has not publicly addressed how those filings will be treated. We will continue to monitor these cases and advise clients on a case-by-case basis.

Background: 

A Presidential Proclamation imposing a $100,000 fee for certain H-1Bs was first published on Friday, September 19, 2025. The lack of clarity provided in the Proclamation itself and lack of consistent guidance among DHS agencies in the days following this announcement created significant panic and confusion about what this would mean for current and future H-1B holders and employers. Various DHS agencies have slowly provided additional guidance allowing us to piece together when the $100,000 fee will apply, with the most detailed guidance published on the USCIS website October 20, 2025, filling in many of the remaining gaps, though a few areas of uncertainty remain. We summarize what is known about the Proclamation based on all available guidance to date. 

Who must pay the $100,000 fee: 

• New H-1B petitions filed on or after 12:01 a.m. EDT, September 21, 2025, for a Beneficiary that is outside the United States without a valid H-1B visa
• Petitions filed on or after that date for a Beneficiary in the United States that requests Consular notification, Port of entry notification, or Pre-flight inspection for a beneficiary
• Petitions requesting a change of status, amendment, or extension (filed on or after that date) if USCIS later determines that the Beneficiary is ineligible for that change/amendment/extension, for example, if a Beneficiary:
  • Was not in valid nonimmigrant status, or
  • Departed the U.S. before adjudication of the request.

Who is not subject to the $100,00 fee: 

• Petitions submitted prior to 12:01 a.m. eastern daylight time on September 21, 2025
• Petitions filed on or after 12:01 a.m. eastern daylight time on September 21, 2025, that request an amendment, change of status, or extension of stay for a Beneficiary inside the United States where the Beneficiary is granted such amendment, change, or extension
  • Note: A Beneficiary of such petition will not be considered to be subject to the payment if he or she subsequently departs the United States and applies for a visa based on the approved petition and/or seeks to reenter the United States on a current H-1B visa

How to pay the fee: 

As of 10/20/2025, USCIS has provided instructions on how to pay the $100,000 fee via pay.gov. If applicable, the fee must be paid prior to filing the H-1B petition with USCIS; petitions filed without proof of payment or proof that an exception has been granted will be denied.  

Exceptions: 

Updates to the USCIS website on 10/20/2025 include additional information on how to request an exception to the $100,000 fee and what criteria will be considered for granting such requests. The USCIS website indicates that an exception may be granted if the Secretary of Homeland Security determines that: 

1. The foreign national’s presence in the U.S. as an H-1B worker is in the national interest;
2. No American worker is available to fill the role;
3. The intended H-1B beneficiary does not pose a threat to the security or welfare of the United States; and
4. Requiring the petitioning employer to pay the $100,000 fee on the beneficiary’s behalf would significantly undermine the interests of the United States.

Exceptions for H-1Bs that would otherwise be subject to the $100,000 fee must be granted prior to filing the H-1B petition with USCIS. Petitioners may seek an exception by sending their request and all supporting evidence to H1BExceptions@hq.dhs.gov.  

Travel & Visa Stamping: 

All available guidance confirms H-1B beneficiaries will not be subject to the $100,000 fee when applying for an H-1B visa based on an approved petition or when entering the U.S. on a valid (unexpired) H-1B visa.  

However, the latest update from USCIS confirms that the $100,000 fee will be triggered if an H-1B beneficiary departs the U.S. while a petition to extend, amend, or change their status is pending with USCIS. As noted above, the filing of an H-1B requesting an extension of stay, amendment, or change of status does not require the fee so long as it is granted. To be eligible for an extension of stay, amendment, or change of status, the beneficiary must be physically present in the U.S. in valid nonimmigrant status at the time of filing the H-1B petition with USCIS and must remain in the U.S. while the petition is pending. If the beneficiary departs the U.S. while the petition is pending, they will be ineligible for an extension, amendment, or change of status, and USCIS will require the $100,000 fee as a result. 

Once an H-1B extension, amendment, or change of status has been approved, the beneficiary may leave the U.S. and apply for an H1B visa without triggering the $100,000 fee.  

Given the nuances of this situation and other potential concerns at this time, we highly recommend consulting a licensed immigration attorney before traveling internationally. 

Litigation and other challenges to the Proclamation: 

As expected, many were quick to react with multiple lawsuits and other efforts to block the enforcement of the Proclamation. Keep an eye on this page for updates and other developments as this issue continues to unfold.