USCIS Clarifies Applicability Of $100,000 H-1B Visa Fee

Highlights

• USCIS limits the $100,000 H-1B fee requirement. Updated guidance issued Oct. 20, 2025, clarifies that the proclamation does not apply to petitions requesting an amendment, change of status, or extension of stay for individuals already in the U.S.
• New petitions for individuals outside the U.S. remain subject to the proclamation. The additional fee continues to apply to beneficiaries abroad or those without valid H-1B visas seeking consular notification, port-of-entry notification, or pre-flight inspection.
• USCIS provides process details. The agency outlined how to render payment online, where applicable, and described the evidentiary requirements for obtaining a national interest exception — including demonstrating that no American worker is available and that the payment would harm U.S. interests.

On Sept. 19, 2025, President Donald Trump signed a proclamation titled "Restriction on Entry of Certain Nonimmigrant Workers" that took effect two days later. Under the proclamation, certain H-1B petitions filed at or after 12:01 a.m. ET on Sept. 21, 2025 must be accompanied by an additional $100,000 payment as a condition of eligibility. (Fact Sheet)

Barnes & Thornburg previouslyadvisedthe proclamation applies only to new, not-yet-filed H-1B petitions. Current H-1B holders, approved petitions, pending petitions as of Sept. 21, 2025, and individuals with valid H-1B visas are not affected.

USCIS Announcement Narrows the Scope of Petitions Subject to the Proclamation

On Oct. 20, 2025, USCIS published updated guidance onSpecialty Occupation Visasthat provides further clarity on exemptions from the proclamation.

Under this new guidance, the proclamation does not cover petitions requesting an amendment, change of status, or extension of stay for individuals present in the United States even if the petition was filed on or after September 21, 2025. This announcement provides some relief to employers and sponsored employees in the U.S. seeking a change of status to H-1B, an extension of H-1B status, or an amendment of their existing H-1B status.

However, the announcement also clarifies that if a requested change, extension or amendment of status is not granted, an individual is subject to the proclamation. Additionally, the proclamation applies to individuals outside the U.S. who are sponsored for an H-1B or individuals who in the U.S. without a valid H-1B visa and are the beneficiaries of a petition requesting consular notification, port of entry notification, or pre-flight inspection.

Examples of cases that could still be subject to the proclamation include:

• Applications filed for physicians after the proclamation's effective date seeking consular or port of entry notification in lieu of a change of status.
• Applications filed after the proclamation's effective date on behalf of individuals ineligible for a change of status, such as Deferred Action for Childhood Arrivals (DACA) recipients or individuals who have been paroled into the U.S.

USCIS Announcement Includes Details on How to Render the Payment, Where Applicable, and the National Interest Exception Process

Additionally, USCIS published instructions on how petitioners could pay the new $100,000 fee online.

USCIS also provided more detail on the process for requesting a national interest exception from the proclamation in cases where it is applicable. The national interest exception process is extremely onerous and will require employers to demonstrate:

1. The individual's presence in the U.S. is in the national interest;
2. No American worker is available to fill the role;
3. The foreign national worker does not pose a threat to the security or welfare of the United States; AND
4. Requiring the petitioning employer to make the payment would be adverse to the interests of the United States

Ongoing Litigation

USCIS's announcement is against the backdrop of ongoing litigation challenging this proclamation. There are currently two separate lawsuits pending in federal courts challenging the legality of this proclamation.

The first of these lawsuits was filed on Oct. 3, 2025, in the U.S. District Court for the Northern District of California by a consortium of nonprofits, including Democracy Forward, the Justice Action Center, the South Asian American Justice Collaborative (SAAJCO) as well as the private bar.

The second lawsuit was filed by the U.S. Chamber of Commerce on Oct. 16, 2025, in the U.S. District Court for the District of Columbia.

Both lawsuits remain pending. If successful, one or both of these lawsuits could result in a finding that the proclamation exceeds executive authority and could set aside any corresponding agency action (including this announcement) seeking to implement the Proclamation.

Barnes & Thornburg encourages employers to consult with legal counsel to assess eligibility for the H-1B visa, as well as confirm the applicability of the proclamation.

Tieranny Cutler, independent contract attorney, also authored this alert.

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.