Employer Alert: $100,000 H‑1B Fee And Travel Restrictions

With only one day of notice, the Trump Administration announced a $100,000 fee on employers who have H-1B specialty occupation workers. On Friday, September 19, 2025, President Trump issued a proclamation restricting the entry of anyone seeking to enter or reenter the United States in H-1B status without first paying a new $100,000 fee. The Presidential Proclamation ("fee rule"), named "Restriction on Entry of Certain Nonimmigrant Workers," became effective at midnight EDT Sunday, September 21, 2025. After sowing confusion about who might be stranded outside the United States, government officials offered clarifications stating the fee would apply only to new H-1B petitions and not to those individuals with currently valid visas. The language used in the various government statements has been imprecise and challenging for employers to interpret. Much is still unclear and litigation is expected.

When Is the Rule for the $100,000 Fee Payment Effective?

During the weekend, on Saturday and Sunday, September 20 and 21, the White House Press Secretary; U.S. Citizenship & Immigration Services (USCIS), which processes H-1B petitions; the Department of State, which issues visas; and Customs & Border Protection (CBP), which controls entry into the United States backpedaled and clarified that it applies to H-1B petitions filed after the effective date. The fee rule went into effect at 12:01 a.m. EDT September 21, 2025.

How Will the Fee Be Applied?

The fee will be paid to USCIS at the time an H-1B petition is filed.
The fee will not be paid to the State Department, which processes H-1B visa documents necessary for individuals to travel to and enter the United States to work in H-1B status, after USCIS has approved an H-1B petition filed by an employer for their benefit.
The fee will not be paid to CBP, which screens and admits H-1B visa holders and others with approved H-1B petitions to the United States.
Employers, not employees, must pay the fee with each "new" H-1B petition submitted to USCIS. H-1B program rules restrict employers from passing filing fees on to employees.
"New" H-1B petitions are typically considered to be those filed for individuals outside the United States who do not yet have an H-1B petition approval, or individuals in the United States in another nonimmigrant status (e.g., F-1 student) who will begin H-1B employment with a new employer or continue employment after changing to H-1B status.
Employers also might also be required to pay the fee with "any other" H-1B petition, according to State Department FAQs.
Employers who have employees selected in the next H-1B "cap" lottery in March 2026 (only 85,000 new H-1Bs are available each year) will need to pay after the selection, when they file the petition with USCIS.
Nonprofits and universities who are "cap-exempt" and have flexibility to file an H-1B anytime without waiting for the lottery should expect to pay the $100,000 fee.
The fee applies regardless of company size or location; it applies to small businesses, healthcare, technology, education, startups, processing engineers, etc., alike.

Are There Exemptions?

H-1B petitions already approved or pending on the effective date are exempt.
H-1B "renewals" are exempt. Presumably, this means H-1B extension petitions yet to be filed with USCIS, on the basis that is continuing and not "new" employment.
Similarly, H-1B "amendment" petitions, for example, for promotions with the same employer, presumably are exempt.
H-1B employees who already have H-1B visas are exempt.
H-1B1 (Chile/Singapore) and H-1B fashion models appear not to be covered by the fee rule but could experience travel delays and challenges.
Employers who can show "national interest" are exempt. The fee rule allows the Department of Homeland Security ("DHS") authority to grant "national interest" exceptions to the fee rule for an individual, company, or industry that DHS determines is not a threat to national security or welfare. However, there are no guidelines issued yet regarding what would be accepted as "national interest" evidence or how such an exception might be granted. But the White House has indicated that some physician and healthcare workers' H-1B petitions might want to consider seeking the national interest exemption.

How Will Visa Processing Outside the United States Be Affected?

The fee rule states that the State Department must verify that the $100,000 fee has been paid before approving any H-1B visa, effective September 21, 2025. Presumably, this applies to H-1B visas issued pursuant to "new" petitions filed after the effective date.
It appears that the State Department will process H-1B visa "renewals" (for H-1B petitions that USCIS already approved and for other petitions not filed as "new" petitions) without requiring evidence of the fee payment.
Where the fee normally would be required in a "new" petition scenario, the State Department may process a visa without evidence of the fee payment, if the DHS Secretary has determined, in her discretion, there is a "national interest" exemption. It is not clear how the DHS-State Department communication and confirmation of national interest exemption will occur.

How Will Travel Into the United States Be Impacted?

Although the Proclamation stated that the fee rule applies to those who are "currently outside the United States," the clarifications note that the proclamation does not restrict the ability of current H-1B visa holders to travel to the United States.

Initially, it appeared that all H-1B employees outside the United States would need to show evidence their employers had paid the $100,000 or be banned from entry. Government officials clarified that the fee rule does not affect those with a valid visa and an H-1B petition approved or pending as of September 21, 2025.
For "new" H-1B petitions filed on September 21, 2025, or thereafter, CBP at airports, seaports, and land ports of entry will require evidence of the fee payment or will deny entry.
Canadian H-1B employees, who are visa exempt by law, with petitions filed on September 21, 2025, or thereafter, will need to present evidence of the required fee payment to CBP.
Aside from Canadians, H-1B employees from other countries might need only to show the H-1B visa, as evidence that the State Department already assessed the fee payment.

What Is the Process for Paying the Fee?

Fee payment procedures have not been announced. There currently is no method to pay the fee.
Starting on October 28, 2025, USCIS will only allow payment by bank wire transfer or ACH or by credit card, submitted on a paper form or accompanying an online H-1B petition submission. It is unclear how employers would be expected to obtain credit limits of at least $100,000 to pay the fees.

How Will Family Members Be Impacted?

Dependent family members of H-1B professionals who have H-4 visas are not directly impacted by the fee rule. In the future, applications for H-4 new and renewed visas by family members could be impacted and family members could face travel delays and challenges related to the application of the fee rule to the primary H-1B worker's petition and visa matters.

What Else Is Still Unknown?

We need clarification on a number of issues:

What constitutes a "new" H-1B versus "any other" H-1B under the fee rule?
Are extensions of stay, amendments to petitions, changes of employer, or changes of status back to H-1B for someone who previously held H-1B status considered "new" or "renewal" petitions?
What will the "national interest" standards be?
What will be the process for adjudicating "national interest"?
How will DHS make "national interest" exemption decisions that apply to entire industries and/or companies as the fee rule authorizes?
Will there be any nonprofit or small business or other exemption?
How are employers to pay the fee?

Litigation regarding the fee rule is expected and may rapidly change the implementation of the fee rule.

Next Steps: What Should Employers Do Now?

Because of the unclear situation, we are advising employers with H-1B employees as follows:

Foreign employees should avoid unnecessary travel outside the U.S.
If they must travel, check the passport to see if the visa is valid.
Consider how to show your business is in the national interest and prepare a declaration with supporting evidence.
Employers that need to file an H-1B extension, amendment, change of employer, or change of status petition and are able to file it online should file the petition online with USCIS as soon as they are able to. Filing online gives employers immediate confirmation that their petition was accepted by USCIS.

Copy and paste this in an email to your employees:

You may be aware that a Presidential Proclamation with an H-1B fee of $100,000 was issued on September 19, 2025, to take effect at 12:01 a.m. EDT September 21, 2025.

Due to this action, [company] requests that you DO NOT LEAVE the United States until we provide you further information on this matter. If you are currently outside the United States, please alert us immediately.

If you have plans to travel outside the U.S. from today forward, please also alert us. We will need to review and consider all travel requests due to the risk that you may not be allowed to return following your trip.

We will monitor the situation closely and provide further insights as matters unfold. If you have any questions or are out of the country, please contact [name/me] ASAP. You can reach me at [email and/or cell number].

Takeaway for Employers

With significant uncertainties surrounding fee payment procedures, "national interest" exemptions, and impacts on visa processing, it is imperative that businesses proactively monitor developments, consult legal counsel, and prepare contingency plans, including green card strategies and alternatives to H-1B. Vigilance will be essential as litigation may alter the current implementation of the fee rule in the coming weeks.

DWT will continue to monitor this issue and provide updates as developments arise. If you have any questions, please feel free to contact a member of DWT's employment, benefits, and immigration group.

Originally published 09.22.25

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.