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On Sept. 19, 2025, President Donald Trump signed a proclamation establishing a new $100,000 payment requirement for certain H-1B filings, effective Sept. 21, 2025. While U.S. Citizenship and Immigration Services (USCIS) has since issued clarifying guidance, inconsistent enforcement by U.S. Customs and Border Protection (CBP) is creating questions and, in some cases, improper denials of entry.
The rule's applicability turns primarily on when the H-1B petition was filed and where the beneficiary is located at the time of filing. The following fact patterns illustrate when the $100,000 payment is required, and when it is not.
1. H-1B petition filed after Sept. 21, 2025, for a beneficiary abroad: Subject to the fee.
This is the baseline rule. Any new H-1B petition filed on or after Sept. 21, 2025, for a beneficiary who is outside the United States and will be admitted under the new petition requires payment of the $100,000 fee.
Example: A U.S. employer files a new H-1B petition on Oct. 1, 2025, for a software engineer residing in India. The payment must accompany the petition.
2. Beneficiary abroad but holding a valid H-1B visa from a prior employer: Subject to the fee.
Even if the beneficiary already holds a valid H-1B visa in their passport from a previous employer, a new petition filed on or after Sept. 21, 2025, for a beneficiary who is abroad will trigger the fee, regardless of when travel occurs or whether this will be the individual's first entry under that petition.
Example: Company B files a new petition on Oct. 5, 2025, for a candidate in the United Kingdom who still holds a valid H-1B visa from Company A. Because the petition was filed after the new fee's effective date while the beneficiary was abroad, the $100,000 payment applies.
3. Petition filed before Sept. 21, 2025, regardless of when travel occurs: Not subject to the fee.
Petitions filed before the effective date are exempt, even if approval of the petition or travel occurs afterward. CBP officers have, in some cases, misapplied this rule. Employers may wish to ensure travelers carry proof of the petition filing date.
Example: A petition filed on Sept. 15, 2025, is approved in October 2025 and the worker enters the United States in November 2025. The filing predates the rule, so the payment is not required.
4. H-1B extensions, amendments, and change of employer filings within the United States: Not subject to the fee.
USCIS has confirmed that the new payment "does not change any payments or fees required to be submitted in connection with any H-1B renewals." USCIS guidance confirmed this logic also applies to change of employer and amendment filings made for workers already in valid H-1B status inside the United States, since no new visa issuance or admission occurs.
Example: A systems analyst in H-1B status with Company A changes jobs to Company B, which files a new H-1B petition on Oct. 3, 2025, while the worker remains in the United States throughout the transaction. The payment is not required.
5. Change of status filings from within the United States: Not subject to the fee.
Beneficiaries changing status (for example, from F-1 to H-1B) who are in the United States when the petition is filed are not subject to the $100,000 payment, even if USCIS approval occurs after Sept. 21, 2025.
Example: A student in F-1 status is selected in the FY 2026 H-1B lottery, and the employer files a change-of-status petition on Sept. 15, 2025. Because the petition was filed before the effective date and the beneficiary remains in the United States, no payment is due.
6. Cap-exempt employer filing after Sept. 21, 2025, for a beneficiary abroad: Subject to the fee.
USCIS has confirmed that universities, nonprofit research institutions, and affiliated entities, though cap-exempt under the H-1B program, are not exempt from the $100,000 payment if filing on or after Sept. 21, 2025, for a beneficiary abroad. The only potential relief is through the proclamation's national interest exception, which USCIS has stated is "extraordinary in scope" and limited to cases demonstrating a direct and substantial benefit to U.S. national security, critical infrastructure, or public health.
Example: A nonprofit medical research organization files an H-1B petition for a scientist abroad on Oct. 5, 2025. The fee applies unless USCIS grants a national interest exception.
7. Beneficiary in the United States who departs while H-1B petition is pending: Subject to the fee.
If a change of status petition is filed for a beneficiary inside the United States and the beneficiary travels abroad before adjudication, the case will convert to consular notification. USCIS has confirmed such cases will trigger the $100,000 fee. Affected beneficiaries may wish to avoid traveling abroad until their H-1B petition is approved.
Example: An F-1 student with a pending H-1B change of status petition travels abroad for family reasons. If the case converts to consular processing, the fee will apply upon visa issuance.
8. Beneficiary obtains new visa stamp abroad based on an H-1B petition filed before Sept. 21, 2025: Not subject to the fee.
A beneficiary who applies for a new H-1B visa stamp at a U.S. consulate abroad using an H-1B petition that was filed before Sept. 21, 2025, is not required to pay the $100,000 fee upon reentry. The key factor is the petition's filing date, not the visa issuance date. Some CBP officers have incorrectly applied the rule in these situations.
Example: A beneficiary's H-1B petition was approved in April 2025. In November 2025, the beneficiary applies for a new visa stamp at the U.S. Consulate in Paris, France and reenters the United States. The $100,000 payment does not apply, because the petition was filed before the new fee's effective date.
9. Beneficiary abroad after six years in H-1B status due to PERM delay or government shutdown: Subject to the fee.
If an H-1B worker reaches the six-year limit and must depart the United States because a PERM application is on hold or delayed due to a reduction in force or government shutdown, any subsequent petition filed to return to H-1B status after departure is treated as a new petition. If the filing occurs on or after Sept. 21, 2025, and the beneficiary is abroad at the time of filing, the $100,000 payment applies.
Example: A beneficiary in valid H-1B status reaches the six-year limit in August 2025 and departs the United States after a PERM filing is paused. In October 2025, the employer files a new H-1B petition for consular processing so the individual may return once the PERM issue resolves. Because the new petition was filed after Sept. 21 while the worker was abroad, the $100,000 fee applies.
How and When to Pay the $100,000 Fee
USCIS now requires petitioners to submit the $100,000 payment through Pay.gov before filing the H-1B petition. Payment must be scheduled using the online form. Proof of payment, or evidence of an approved exception from the secretary of homeland security, must accompany the H-1B petition at the time of filing. Petitions USCIS considers to be subject to the payment will be denied unless evidence of payment is provided. USCIS has not stated whether it will refund the $100,000 fee if the petition is ultimately denied, withdrawn, or revoked.
Key Takeaways
The $100,000 payment applies to new H-1B petitions filed on or after Sept. 21, 2025, for beneficiaries abroad who will be admitted under that petition, including those filed by cap-exempt institutions. The only potential relief is through the limited national interest exception, which USCIS states in its guidance is reserved for "extraordinary rare circumstances" where "that no American worker is available to fill the role, that the [H-1B] worker does not pose a threat to the security or welfare of the United States, and that requiring the petitioning employer to make the payment on the [H-1B worker's] behalf would significantly undermine the interests of the United States."
Extensions, renewals, change of employer filings, amendments, pre-existing petition holders reentering under the same petition, and in-country change of status cases are excluded. Because CBP officers may lack full implementation guidance, even exempt travelers may wish to carry a copy of USCIS' recent guidance and evidence confirming petition filing date and status.
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.
