One month after issuing a Proclamation entitled “Restrictions on Entry of Certain Nonimmigrant Workers” that imposed a $100,000 fee for certain H-1B visa petitions, United States Citizenship and Immigration Services (USCIS) published clarifying updates that echo similar updates from other agencies. The USCIS update is available HERE under the drop-down “Presidential Proclamation on Restriction on Entry of Certain Nonimmigrant Workers.”
The largest clarification is that the fee will not apply to petitions filed as a change of status or extension or amendment of stay for individuals already present in the U.S. That means no F-1 students seeking to change to H-1B status after graduation will be subject to the fee unless they are found to be ineligible for a change of status due to some prior immigration problem (e.g., failure to maintain status). Since the majority of first-time H-1B petitions in each annual lottery are for students, the Proclamation will not have as large an impact as its plain language originally suggested.
This narrowing of the Proclamation’s scope is likely due to the need to base the Proclamation’s legal grounds on the president’s broad powers to control the entry of foreign nationals, and not his more limited ability to control those already within the US.
Relevant points in the USCIS update:
- The Proclamation still only applies to H-1B beneficiaries (the employees who will hold H-1B status) who are outside the US and do not have a valid H-1B visa at the time the petition is filed after September 21, 2025.
- $100,000 fee applies if:
- The petition requests consular notification, port of entry notification, or pre-flight inspection for the beneficiary.
- The petition requests a change of status or amendment or extension of stay and USCIS rejects that request and requires the H-1B to be obtained outside the U.S. The rejection could be for various reasons, such as the beneficiary’s failure to maintain valid status inside the US or departure from US before the change, amendment, or extension petition was approved.
- $100,000 fee does not apply if:
- The beneficiary already holds an H-1B visa or status.
- The petition was filed before September 21, 2025.
- The beneficiary receives approval of an H-1B petition filed as a change of status or amendment or extension of stay, even if filed on or after September 21, 2025. This includes beneficiaries of such approved petitions that later leave the US to obtain a visa stamp in their passport based on the underlying approved petition.
- USCIS provides a link and instructions on how to pay the $100,000 fee.
- Exceptions to the $100,000 fee can be granted by the DHS Secretary if “a particular alien worker’s presence in the United States 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 United States, and that requiring the petitioning employer to make the payment on the alien’s behalf would significantly undermine the interests of the United States.” An email address (H1BExceptions@hq.dhs.gov) is provided where those seeking the exception may submit their request and supporting evidence in advance of filing the H-1B petition.
In practice, this update exempts most first-time H-1B applicants from the $100,000 fee. Although difficult to find exact numbers, approximately three-quarters of current H-1B workers graduated from a U.S. university and likely changed from F-1 to H-1B status while within the United States. This means many employers will likely not be required to pay the new fee in their normal course of business.
Additional H-1B restrictions and changes have already been proposed or are expected in the coming weeks and months that will likely narrow the pool of qualifying beneficiaries and H-1B positions, including changes to prevailing wage requirements. These include already proposed changes to the lottery selection process and likely proposals to raise prevailing wage levels and more tightly define which occupations qualify for H-1B status. Since many of the upcoming changes are expected to disproportionately affect H-1B beneficiaries in entry-level and low-experience positions, students and less-experienced, lower-paying H-1B applicants will face limited options. Several lawsuits challenging the fee are working their way through the court system and are likely to have initial rulings before the March 2026 H-1B lottery. The U.S. Chamber of Commerce and the Association of American Universities (AAU), among other plaintiffs, argue the fee exceeds the president’s authority and should be struck down. We will continue to monitor these cases as they advance.