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USCIS Clarifies the new $100,000 H-1B fee.
Effective for petitions filed on or after September 21, 2025, USCIS requires a $100,000 supplemental payment on new H-1B petitions tied to entry. Existing H-1B holders and beneficiaries of routine in-U.S. changes of status, extensions, amendments, or changes of employer petitions remain unimpacted by this fee even if they later travel and apply for a visa or reenter with the approved petition, unless the petition is later found to be ineligible.
When we last covered the President's September 19 Proclamation, employers faced more questions than answers on the $100,000 H-1B fee. Yesterday, USCIS answered, and the news is complex. USCIS's new instructions clarify who must pay, how to pay, and the very limited, and arguably overreaching, circumstances in which exceptions may apply.
Who Must Pay
This fee attaches only to new H-1B petitions submitted on or after September 21, 2025 that are tied to entry into the U.S.; it does not apply to petitions filed before that date, to in-U.S. changes of status, extensions, amendments, or changes of employer petitions that USCIS approves, or to previously issued and still-valid H-1B visas.
Because the $100,000 fee is tied to entry into the U.S., it applies to all petitions that request consular notification, port of entry notification, or preclearance notification, even for beneficiaries presently in the United States. In addition, if a petition requests a change of status, extension, amendment, or change of employer and USCIS later determines the worker was not eligible (such as not maintaining valid status or leaving the country before adjudication) the fee requirement attaches.
Timing and Payment
USCIS requires petitioners to make the $100,000 payment before filing the H-1B petition, with proof of payment included with the submission. Payments are processed through pay.gov and the payment receipt must be attached. Filings that require the fee but lack proof of payment may be rejected or denied for improper fee submission.
Exceptions
USCIS emphasizes that exceptions to the $100,000 fee will be "extraordinarily rare." The Secretary of Homeland Security may waive the fee only if each of the following four conditions is met: the worker is deemed to be in the national interest, no American worker is available, the worker poses no threat to U.S. security or welfare, and requiring the payment would significantly undermine U.S. interests. Employers seeking an exception must submit requests with full supporting documentation to H1BExceptions@hq.dhs.gov.
Can DHS Impose a "No U.S. Worker Available" Test?
The most striking part of the new exception framework is the requirement to show that "no American worker is available." That standard comes directly from the permanent labor certification process. Under §212(a)(5)(A) of the Immigration and Nationality Act, immigrant visas based on permanent employment are barred unless the Secretary of Labor certifies that (1) there are not sufficient U.S. workers available at the place of employment and (2) the employment of the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers. The implementing regulations at 20 C.F.R. §656.1 and related provisions set out the detailed labor market test that employers must satisfy through a procedure that is commonly referred to as the PERM process.
Congress did not impose a labor market test in the H-1B program. Instead, §212(n) of the Immigration and Nationality Act and its regulations at 20 C.F.R. §655.700–§655.760 require only a Labor Condition Application (LCA) in H-1B petitions, which obligates employers to pay the prevailing wage and maintain certain working conditions. Critically, LCAs do not require a showing that no qualified U.S. worker is available. By design, Congress distinguished H-1B temporary admissions from the more stringent PERM process.
While the Supreme Court's decision in Trump v. Hawaii recognizes a president's broad authority under INA §212(f) to restrict entry, it does not license the executive to re-write statutory schemes Congress designed for specific categories. The Ninth Circuit's Doe #1 v. Trump decision underscores that §212(f) 'is not limitless' and cannot be deployed to supplant Congress's framework, which is precisely the risk posed by importing a PERM-style 'no U.S. worker available' test into an H-1B exception.
What Employers Should Do
This legal tension underscores the uncertainty now facing employers. The $100,000 fee is operational, with clear payment procedures and a very narrow, arguably overreaching exception process. Employers contemplating new H-1B filings should plan for the surcharge unless litigation changes the landscape. At the same time, they should watch closely how the courts respond, since challenges argue that the exception framework -particularly the "no American worker available" requirement- conflicts with Congress's design by importing a PERM-style test into a temporary visa program.
USCIS Clarifies the New $100,000 H-1B Fee: Who Pays, When to Pay, and the Narrow Exception Path
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