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United States Citizenship and Immigration Services (USCIS) has published updated guidance about the Presidential Proclamation regarding the $100,000 payment. See: H-1B Specialty Occupations | USCIS.
Who Is Not Subject to the $100,000 Payment:
- H-1B petitions filed after 09/21/25 requesting an amendment, change of status, or extension of stay for an alien inside the US where the alien is granted such amendment, change, or extension. Further, an alien beneficiary of such petition will not be subject to the payment if he or she subsequently departs the US and applies for a visa based on the approved petition and/or seeks to reenter the US on a current H-1B visa.
- Holder of a current H-1B visa, or any alien beneficiary following petition approval, from traveling in and out of the US.
- Any previously issued and currently valid H-1B visas.
- Any petitions submitted prior to 09/21/25.
Who Is Subject to the $100,000 Payment:
- New H-1B petitions filed after 09/21/25, on behalf of beneficiaries who are outside the US and do not have a valid H-1B visa.
- New H-1B petitions filed after 09/21/25, requesting consular notification, port of entry notification, or pre-flight inspection for an alien in the US.
- New H-1B petitions filed after 09/21/25, that requested a change of status, and the USCIS determines that the alien is ineligible for a change of status or an amendment or extension of stay (e.g., is not in a valid nonimmigrant visa status or if the alien departs the US prior to adjudication of a change of status request).
Exceptions to the $100,000 Payment:
- May be granted by the Secretary of Homeland Security in extraordinarily rare circumstances.
- Where the Secretary has determined that a particular alien worker's presence in the US as an H-1B worker is in the national interest, that no American worker is available to fill the role, that the alien worker does not pose a threat to the security or welfare of the US, and that requiring the petitioning employer to make the payment on the alien's behalf would significantly undermine the interests of the US.
This is welcome news for next year's selected H-1B lottery applicants who will not be subject to the $100,000 payment if they are approved for a change of status. As litigation is still pending in the courts, this is a fluid situation that we are monitoring.
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.
