United States: What Employers and Foreign Nationals Need to Know about the New H-1B Fee

1. In brief, how does the presidential proclamation affect H-1B filings? Which H-1B petitions are subject to the proclamation and the $100,00 fee?

The presidential proclamation on H-1Bs is a restriction on entry to the United States that stems from the President’s statutory authority to suspend or curb the entry of an individual or class of foreign nationals if it is found to be detrimental to U.S. interests.

Under the proclamation and related guidance from U.S. Citizenship and Immigration Services, if the foreign national is the beneficiary of an H-1B petition filed after September 20, 2025 and will need to travel abroad and reenter the United States to assume or continue H-1B status, the petitioning employer is subject to the $100,000 fee unless the employer has been granted an exception. This means that the proclamation applies where:

• The beneficiary is outside the United States and does not hold a valid visa; OR
• The petition is filed for consular notification, whether the beneficiary is in the United States or abroad; OR
• Where USCIS denies a request for an H-1B extension, amendment, or change of status and approves the underlying H-1B petition only for consular notification.

2. What is a consular notification petition and why is it subject to the fee?

When an employer files a Form I-129 petition to classify a foreign national as an H-1B nonimmigrant, the employer must select the action it wants USCIS to take once the petition is approved. Employers choose consular notification when they want USCIS to simply inform a U.S. consulate that the beneficiary has been approved for the classification so that the foreign national can use the USCIS approval to apply for an H-1B visa at the consulate.

A consular notification petition does not have a direct impact on the beneficiary’s current status; rather, the beneficiary must take the additional step of entering the United States with a valid H-1B visa (unless visa-exempt) to assume H-1B status. Because consular notification petitions require an entry to the United States to effect H-1B status, they are subject to the presidential proclamation restricting H-1B entry. A consular notification petition can also be filed for a foreign national currently in H-1B status, but they would still be required to depart the United States and re-enter with an H-1B visa (unless visa-exempt) in order to begin H-1B employment under the newly approved petition.

Alternatively, if the foreign national is in the United States and has been maintaining proper status, the employer can request an extension of stay, change of status, or amendment of the beneficiary’s stay when it files an H-1B petition; these options ask USCIS to take an action that has a direct impact on the beneficiary’s present status and do not require the beneficiary to travel and reenter the United States to assume or continue H-1B status. These options and their impact on the petitioner’s potential liability for the $100,000 fee are discussed in detail below.

3. Are H-1B change-of-status petitions subject to the proclamation and fee?

Generally, no. If a change of status is requested and approved by USCIS, the fee will not apply to that H-1B petition. However, if the change of status request is denied (e.g., because the foreign national was found to have violated status or deemed to have abandoned the change of status request because they traveled while the petition was pending), USCIS will not approve the underlying H-1B petition without payment of the $100,000 fee or an approved national interest exception – with a possible exception if the foreign national already holds a valid H-1B visa (see Question 7 below).

4. Are extensions of H-1B status subject to the fee?

Generally, no. 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 (discussed above), if an extension of stay is requested and denied, USCIS will not approve the underlying H-1B petition without the $100,000 fee or approved national interest exception (with a possible exception if the beneficiary already holds a valid H-1B visa, discussed in Question 7 below).

5. Are change-of-employer H-1B petitions subject to the proclamation and fee?

It depends. As long as the change-of-employer petition requests an extension of stay and is approved for an extension of stay, the petition is not subject to the fee. However, if the employer filed the change-of-employer petition for consular notification rather than requesting an extension of stay, the fee would apply. Similarly, the fee would apply if the employer requested an extension of stay with the change of employer request and USCIS approved the petition but denied the extension request.

6. Are H-1B petitions seeking to amend the foreign national’s stay subject to the fee? 

Generally, no. If an H-1B petition to amend the beneficiary’s stay is requested and approved by USCIS, the fee will not apply to that H-1B petition. However, if the amended stay request is denied, USCIS will not approve the underlying H-1B petition without payment of the $100,000 fee or an approved national interest exception – with a possible exception if the foreign national already holds a valid H-1B visa (see Question 7 below).

7. What if the foreign national has an existing valid H-1B visa based on a previous petition but a new petition is filed after September 20, 2025 for the individual and the petition requests, or is only approvable for, consular notification? Would the $100,000 fee apply?

It is not yet clear whether the fee is required if the foreign national has an existing valid H-1B visa but is the beneficiary of a new petition that would otherwise be subject to the fee – such as where the foreign national has a valid H-1B visa from a previous or their current employer and a newly approved consular notification petition. Further guidance from the government is necessary to resolve this question.

8. Are cap-exempt organizations subject to the $100,000 fee?

Certain types of H-1B employers are statutorily exempt from the annual H-1B cap – institutions of higher education and affiliated nonprofits, and governmental and nonprofit research organizations.

However, neither the presidential proclamation nor the USCIS implementing guidance creates a carve-out for these organizations and thus they are subject to the fee unless they are excepted on some other ground, e.g., because the petition requests and is approved for an extension of stay, change of status, or amendment, or because the petitioner has applied for and received a national interest exception. See Questions 9-11 for further information on national interest exceptions from the fee.

9. Can a petitioning employer seek an exception from the new fee?

The presidential proclamation imposing the new fee states that exceptions are available for individual employees, companies, and industries, if it can be demonstrated that an exception is in the national interest.

New guidance issued by USCIS provides a process and criteria for seeking a national interest exception (NIE) with respect to an individual foreign national. The government has not yet announced a process for granting national interest exceptions to companies or industries.

10. What must an employer demonstrate to obtain a national interest exception for an employee?

According to USCIS, national interest exceptions for specific employees will be granted in “extraordinarily rare” circumstances where the employer can meet all of the following stringent criteria:

• 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.

USCIS has not addressed the kinds of evidence it expects to see in requests for individual national interest exceptions. Though exceptions and waivers of certain immigration requirements are granted in the national interest in other contexts – such as national interest waivers of the labor certification requirement in permanent residence cases – it is not yet known whether the same standards would be applicable to exceptions to the H-1B fee. And importantly, to qualify for an exception to the fee, an employer must also show that requiring the fee would significantly undermine the national interests of the United States – a new criterion that may be difficult to demonstrate.

It is also not clear how an employer would show 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 (known as H-1B-dependent employers) or those with a record of H-1B program violations.

Employers wishing to explore a national interest exception should contact their Fragomen professional and the firm’s Government Strategies and Compliance group.

11. What is the process for seeking a national interest exception to the new H-1B fee?

USCIS has said that individual national interest exceptions must be sought and approved before a petition otherwise subject to the proclamation is filed. Applications are to be submitted through a dedicated DHS email address.

It is not yet clear how an employer would seek an exception where USCIS has determined that the filing is not eligible for an extension, amendment, or change of status but the underlying H-1B petition is approvable for consular notification. In such cases, USCIS may issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) the petition, stating that the underlying petition cannot approved unless the petitioner submits proof of payment of the $100,000 fee or proof that a national interest exception has been approved. If that is the process USCIS follows, it would then be necessary to obtain approval of a national interest exception from DHS before the due date for the response to the RFE or NOID.

12. When and how does an employer pay the new fee? Will the fee be refunded if the H-1B petition is denied?

According to USCIS, the $100,000 fee must be paid before a subject petition is filed. The payment must be made through the Treasury Department’s pay.gov portal. The employer must submit proof of the fee payment (or evidence of an approved national interest exception) when filing the H-1B petition.

USCIS has not yet provided instructions for paying the fee in the event that USCIS determines that the filing is not eligible for an extension, amendment, or change of status but the underlying H-1B petition is approvable for consular notification. In such cases, USCIS may issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) the petition, stating that the underlying petition cannot approved unless the petitioner submits proof of payment of the $100,000 fee or proof that a national interest exception has been approved. If that is the process USCIS follows, it would then be necessary to pay the fee and submit proof of payment to USCIS before the due date for the response to the RFE or NOID.

USCIS has said that the $100,000 fee would be refunded in full if an H-1B petition subject to the fee is denied. However, other H-1B petition fees would not be refunded in the event of a denial.

13. If the USCIS determines that a petition is not eligible for an extension, amendment, or change of status and conditions approval of the underlying petition for consular notification on payment of the $100,000 fee, can the employer opt to withdraw the petition and not pay the fee?

There is no requirement that the employer pay the $100,000 fee if it no longer wishes to pursue approval of the petition. In that circumstance, the  employer may withdraw the petition or simply not comply with the request and allow the petition to be denied.

14. Can an H-1B beneficiary pay the $100,000 fee on their own behalf?

No, the H-1B fee must be paid by the petitioning employer. H-1B program rules prohibit foreign nationals from being liable for any H-1B-related fee that is a business expense of the employer.

15. If an H-1B beneficiary travels while their petition is pending, is the employer liable for the $100,000 fee?

If the foreign national is the beneficiary of an H-1B petition and request to change status, traveling internationally while the petition is pending will cause the change of status request to be deemed abandoned and will trigger the fee. Traveling while an H-1B petition and extension of stay or amendment of stay is pending should not trigger the fee, though caution is advised.

Foreign nationals with a pending H-1B petition and request for an extension, change of status, or amendment of stay should consult their Fragomen professional before making any international travel plans.

16. If an H-1B beneficiary travels abroad after their petition is approved, is the employer liable for the fee?

Traveling after an extension, change of status, or amendment is approved should not trigger the fee. The USCIS guidance makes clear that a petition requesting an amendment, change of status, or extension of stay that is approved for a foreign national who is inside the United States is not subject to the fee, and will not be considered subject to the fee if the beneficiary later departs the United States and applies for a visa based on the approved petition or seeks to reenter the United States on a currently valid H-1B visa.

17. Will FY 2027 H-1B cap cases be subject to the fee?

If an H-1B cap case is filed and approved for a change of status, the petition would not be subject to the $100,000 fee.

However, if USCIS determines that the request for a change of status is not approvable – e.g., if USCIS finds that the foreign national did not maintain their current status and thus is not eligible to change their status in the United States – the employer would be required to pay the $100,000 or obtain a national interest exception in order to obtain an approval of the underlying petition. If the employer pays the required fee or obtains a national interest exception, the underlying petition would then be approved for consular notification, which would enable the beneficiary to travel abroad, obtain an H-1B visa (unless visa exempt), and reenter the United States in H-1B status. It is anticipated that USCIS would provide fee payment instructions when it notifies the petitioner, likely in an RFE or NOID, that the petition is not approvable for a change of status.

18. Many H-1B cap beneficiaries are F-1 students. How are they affected by the $100,00 fee? 

Petitions filed on behalf of F-1 students seeking a change of status to H-1B would not be subject to the $100,000 fee upon filing. However, if USCIS finds that the beneficiary failed to maintain their F-1 status, or if the F-1 student travels internationally while the petition is pending, causing the change-of-status request to be deemed abandoned, the change-of-status request would be denied, and the underlying H-1B petition could not be approved unless the employer paid the $100,000 fee or was granted a national interest exception.

Therefore, it is more important than ever that F-1 students comply with all obligations of their foreign student status and comply with any travel limitations that may apply to their case.

F-1 students need to ensure that they timely complete all required SEVIS reporting, maintain a full course load if still in school (unless their DSO has approved a reduced course load), ensure that they do not exceed the maximum period of unemployment during optional practical training (OPT) and STEM OPT, and refrain from unauthorized employment, among other obligations.

Failure to maintain foreign student status has always had significant negative consequences for F-1s seeking a change of status to H-1B. If USCIS denies an H-1B change of status request due to a failure to maintain F-1 status, the foreign national is not eligible for cap-gap benefits or the 60-day F-1 grace period and they begin to accrue unlawful presence as of the date of the denial of the change of status. They must stop working and depart the United States immediately. In addition, under the presidential proclamation, their sponsoring employer will be required to pay the $100,000 fee or obtain an approved national interest exception before the underlying H-1B petition could be approved.

Finally, F-1 students with a pending change of status to H-1B should avoid international travel and be aware of the potential negative impact if travel is unavoidable. Although traveling while a change of status is pending with USCIS would cause the change of status to be deemed abandoned and trigger the $100,000 fee, traveling after a change of status petition is approved would not undo the approved change of status or trigger the fee. See Question 15 above.

19. Could the proposed regulation limiting F-1 students to a specific period of stay have an impact on whether their H-1B employers would be subject to the $100,000 fee?

The Department of Homeland Security has proposed a regulation that would subject international students, exchange visitors, and representatives of foreign information media to fixed periods of stay, eliminating the longstanding policy of admitting these individuals into the country for the duration of their status.

This rule is currently in the proposal stage only. But if it is finalized as proposed, F-1 students (as well as J and I nonimmigrants) would need to apply for an extension of stay to continue their activities beyond their specified admission period. For example, if an F-1 student wanted to pursue optional practical training (OPT) after they completed their course of study, they would need to apply for an extension of their stay in addition to applying as usual for an OPT employment authorization document (EAD). If they did not timely seek an extension of stay and experienced a lapse in status, or if they were denied an extension because USCIS determined that they had violated their F-1 status, this could affect their future ability to seek a change of status to H-1B and thus might render their sponsoring employer subject to the $100,000 fee when petitioning for their H-1B status. 

20. Could the presidential proclamation and the fee be paused or struck down by a court? Could a court issue a nationwide injunction against the proclamation or would an injunction be limited to a specific geographic area?

Two federal lawsuits have been filed against the H-1B proclamation. 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 requested a temporary stay or preliminary injunction against the proclamation, the latest USCIS guidance could prompt them to seek interim relief from the courts. Whether any interim relief that might be granted would be nationwide in scope or limited to the area of the issuing court’s jurisdiction is not yet known, but both lawsuits state claims under the Administrative Procedure Act, which allows nationwide remedies. If a court were to issue any injunction, nationwide or of limited scope, the decision would likely be appealed by the Trump Administration.