USCIS Releases Latest Guidance on the $100,000 H-1B Fee
Attorneys:Attorney Jeff Zhengquan Xie,Attorney Jiarui Yin,Attorney Qian Zhao,Attorney Haochun Ling, Xiang Xiao
On September 21, 2025, Donald Trump signed the Presidential Proclamation on the Restriction on Entry of Certain Nonimmigrant Workers, stipulating that a $100,000 supplementary fee shall be levied on certain H-1B work visa applications effective as of the same date. One month later, U.S. Citizenship and Immigration Services (USCIS) finally issued implementing guidelines for the proclamation, providing further clarification on the scope of application, payment methods, and exemption criteria.
I. Scenarios Exempt from the $100,000 Fee
USCIS explicitly specifies that the following H-1B applications are not subject to this fee:
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All H-1B applications filed on or before September 21, 2025;
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H-1B applications filed after September 21, 2025, for amendment, change of status, or extension of stay in the U.S. (provided that the application is approved);
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Although not explicitly stipulated, Change of Employer (COE) applications are expected to fall within the exemption scope, as they usually include a request for extension of stay.
Beneficiaries approved under the above scenarios will not be required to pay the fee again if they depart the U.S. and re-enter with H-1B status in the future.
II. Scenarios Subject to the $100,000 Fee
The $100,000 supplementary fee applies to the following situations:
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New H-1B applications filed by employers on or after September 21, 2025, for foreign nationals who are outside the U.S. and do not hold a valid H-1B visa;
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Employers selecting Consular Notification or Port of Entry Notification in new H-1B applications;
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If a foreign national in the U.S. files an H-1B change of status application in another nonimmigrant status and the application is rejected, the employer must pay this fee to enable the employee to apply for an H-1B visa or enter the U.S. from abroad.
Therefore, we recommend that employers fully assess the eligibility and risks of the application before submitting an H-1B change of status request.
III. Exemption Criteria and Application Procedures
Currently, USCIS explicitly states that even institutions of higher education, government research organizations, or nonprofit research institutions (which typically qualify for ACWIA fee exemptions) are not automatically exempt from this $100,000 fee.
Employers may file an exemption application if they believe that employing the foreign national is in the U.S. National Interest.
However, USCIS notes that such exemptions will only be granted in "extremely rare cases" and are subject to the discretion of the Secretary of Homeland Security.
The application must be supported by the following documentary evidence:
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The foreign national’s work is critical to U.S. national interests;
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No qualified U.S. workers are available to fill the position;
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The foreign national poses no threat to national security or public welfare;
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Requiring payment of the fee would harm U.S. interests.
USCIS has not, however, specified the processing timeframe for such fee exemption applications.
Notably, the standards published by USCIS are more stringent than those in the original presidential proclamation. While the original proclamation allowed for industry-wide or company-wide collective exemptions, USCIS only recognizes case-by-case exemptions.
IV. Payment Methods and Refund Instructions
If applicable, employers must remit the $100,000 fee to the U.S. Treasury via Automated Clearing House (ACH) electronic transfer prior to filing the H-1B application. The online payment portal states that "full refunds will be issued if the application is not approved", but USCIS has not clarified whether this provision applies to H-1B petitions filed by employers or is limited to visa applications only.
In addition, no guidance has been provided on the timeframe for fee payment in the event that a change of status application is rejected.
V. Updates on Related Litigation
Two federal lawsuits have been filed to challenge the proclamation:
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Global Nurse Force v. Trump (U.S. District Court for the Northern District of California): Filed jointly by multiple healthcare providers, religious organizations, and educational institutions, challenging the legality of the fee.
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U.S. Chamber of Commerce v. U.S. Government (U.S. District Court for the District of Columbia): Alleging that the fee exceeds administrative authority, violates statutory requirements, and causes substantial harm to U.S. businesses.
VI. Attorney Recommendations
Since the implementation of the proclamation relies on internal USCIS guidance and memoranda and has not gone through a formal legislative process, its provisions are subject to change at any time. In addition, if the current U.S. government shutdown persists, non-emergency consular services may be reduced or suspended.
Therefore, our law firm recommends the following:
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Foreign national H-1B workers currently in the U.S. should avoid traveling abroad in the near term;
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If international travel is unavoidable, arrangements should be made only after full consultation with the employer and legal counsel;
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Travel plans should remain flexible to accommodate potential delays and policy changes;
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Given that a rejected H-1B change of status application in the U.S. requiring visa stamping abroad falls under the scenarios subject to the $100,000 fee, readers should prioritize maintaining valid nonimmigrant status and retain professional legal counsel to carefully plan their H-1B applications.
Our firm will continue to monitor subsequent developments and issue timely updates as new progress emerges from the government or courts.
The above overview is prepared by XIE LAW OFFICES,LLC. to provide legal information to the Chinese community. It is primarily for academic discussion purposes and does not constitute legal advice on specific cases. If you already have legal representation, please consult your own attorney, who is familiar with the details of your case. Clients of Xie & Associates Law Firm, as well as readers who have not yet retained legal counsel, may contact Attorney Xie for specific legal questions. If you wish to reprint this document, please do so in full without any deletions, and clearly indicate the source.
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