United States: USCIS Issues Guidelines on the New H-1B Fee

The new USCIS guidance states that the proclamation applies only to H-1B petitions filed on or after September 21 on behalf of H-1B beneficiaries who either:

• Are outside the United States and do not have a valid visa; or
• Are the beneficiary of a petition filed for, or approved for, consular notification, regardless of whether the beneficiary is in or outside the United States.

The guidance further clarifies that the proclamation does not apply to petitions seeking an extension, amendment, or change of status, unless USCIS denies the requested extension, amendment, or change of status and approves the petition only for consular notification. A change of employer petition will not be subject to the proclamation, unless it is filed or approved for consular notification.

The following analyzes the new guidance as applied to various types of H-1B petitions that are submitted to USCIS on or after September 21, and identifies key open questions that remain:

H-1B petitions requesting consular notification: The new guidance states that a petition is subject to the $100,00 fee if the requested action on the petition is to notify a U.S. consulate, port of entry, or pre-flight inspection of the petition approval, i.e., the petition does not request a change of status, an extension of stay, or an amendment.

A consular notification H-1B petition will be subject to the fee regardless of whether the foreign beneficiary is in the United States when the petition is filed or is outside the United States at the time of filing. However, it is not yet clear whether the fee will apply to a consular notification petition where the foreign national already holds a valid H-1B visa.

Change of status requests: If a change of status is requested and approved by USCIS, the fee will not apply to that H-1B petition. However, if a change of status is requested and denied and instead approved only for consular notification because the foreign national traveled while the petition was pending or was found to have violated status, USCIS will not approve the underlying H-1B petition without payment of the $100,000 fee (with the possible exception of valid H-1B visa holders). 

This guidance is especially relevant for FY 2027 H-1B cap cases that will be filed in the spring/summer of 2026. If an H-1B cap petition is filed with a change of status request, and that change of status is approved, the $100,000 fee will not apply.

Extension of stay requests: If an extension of stay is requested and approved by USCIS, the fee will not apply to that H-1B petition. However, as with change of status requests noted above, if an extension of stay is requested and denied, USCIS will not approve the underlying H-1B petition without the $100,000 fee (with the possible exception of valid H-1B visa holders). 

Amended petitions: If an amendment of H-1B status is requested and approved by USCIS, the fee will not apply to that H-1B petition. However, as with change and extension of statuses, if an amendment of status is requested and denied, USCIS will not approve the underlying H-1B petition without the $100,000 fee (with the possible exception of valid H-1B visa holders). 

Change of employer petitions: A change of employer petition will not be subject to the $100,000 fee if the petition requests an extension of stay and the extension request is approved. Conversely, if a change of employer petition is filed or approved for consular notification, it will be subject to the $100,000 fee (with the possible exception of valid H-1B visa holders).

Continuation of employment with the same employer: It appears that whether a petition filed for continuation of employment with the same employer is subject to the $100,000 fee will depend on whether the petition is filed with an extension of stay request, or a consular notification request.

Despite prior guidance from USCIS stating that H-1B renewals are not subject to the proclamation, the new guidance indicates that if the petition is filed for consular notification (or if an extension of stay request is denied and the petition is approved for consular notification), then the $100,000 fee will apply even to a petition filed by an H-1B employee’s existing employer for continuation of the same employment (with the possible exception of valid H-1B visa holders).

If the employer requests an extension of stay, however, and that request is approved, the petition is not subject to the fee.

Impact of travel outside the United States after petition approval: If a foreign national whose petition is approved without the $100,000 fee being required subsequently departs the United States, they will not become subject to the fee as a result of that departure.

Denied petitions: According to the new online form that has been created to pay the $100,000 fee, if the H-1B petition is denied, the fee will be refunded.

Though the new guidance addresses many questions about the application of the proclamation, some important issues remain unresolved. It is not yet clear whether the fee is required of foreign nationals with an existing valid H-1B visa if they are the beneficiary of a new petition that would otherwise be subject to the proclamation. For example, it is not yet known whether the proclamation and associated fee would apply to a foreign national with a valid H-1B visa from a previous employer and an approved consular notification petition filed by a new employer.

According to USCIS, national interest exceptions from the new fee will only be granted in “extraordinarily rare” circumstances where the employer can demonstrate all of the following stringent criteria with respect to a specific foreign national:

• The foreign national’s presence in the United States as an H-1B worker is in the national interest;
• No American worker is available to fill the role;
• The foreign national does not pose a threat to the security or welfare of the United States; and
• Requiring the petitioning employer to make the payment on the foreign national’s behalf would significantly undermine the interests of the United States.

The agency has not addressed the kinds of evidence it expects to see in requests for national interest exceptions. Though the Administration has granted national interest exceptions in other contexts, it is not yet known whether those criteria would be applicable to exceptions from the H-1B fee. In addition, it is not clear how an employer would demonstrate that no American workers were available to fill an H-1B role; tests of the labor market are not part of the H-1B process except in the case of employers with a high percentage of H-1B employees or with a record of H-1B program violations.

The presidential proclamation indicated that national interest exceptions would be available to specific companies and industries, as well as individual foreign nationals. President Trump himself commented that physicians might be exempted from the fee. However, the USCIS guidelines refer only to DHS approving exceptions for a “particular alien” and do not address company-wide or industry-wide national interest exceptions, and it remains to be seen how and whether employers might apply for such exceptions.

According to today’s guidance, petitioners must obtain approval for a national interest exception from DHS in advance, prior to submitting a petition that is subject to the proclamation.

The new guidance states that payment of the $100,000 fee must be made on the U.S. Department of Treasury pay.gov portal prior to filing the H-1B petition with USCIS. The H-1B petition must be filed with proof of the fee payment or with evidence of a DHS-approved national interest exception. If the petition is filed without either of these, it appears that the petition will be denied without RFE.

The only exception would appear to be where the petition is filed for an extension, amendment, or change of status request but the request is denied and USCIS approves the petition for consular notification, thereby triggering the fee. In such cases, it appears that USCIS will issue instructions to the petitioner to pay the fee when it notifies the petitioner that the petition cannot be approved for an extension, change, or amendment of status.

Two lawsuits challenging the September 19 proclamation have been filed thus far. Each seeks a declaratory judgment striking down the proclamation and a permanent injunction against its implementation. Though the plaintiffs in these cases have not yet sought a temporary stay or preliminary injunction against the proclamation, today’s new guidance could prompt requests for interim relief.

Fragomen is closely following implementation of the presidential proclamation and the litigation challenging it. We will provide updates as developments occur.