New Guidance And Legal Challenges Emerge Over $100,000 H-1B Fee

As a follow up to our most recent posting on the September 19 Proclamation that added a $100,000 fee for H-1B petitions, we are sharing the latest – new guidance and two lawsuits filed. For more information on the Proclamation, see also this recent article from Forbes.

We now know that:

1. The $100,000 fee applies to new H-1B petitions filed for people outside the US – for consular processing. It does not apply to people in the US who file for an extension or change of status, even if they travel internationally. See Presidential Proclamation on Restriction on Entry of Certain Nonimmigrant Workers | USCIS.
2. USCIS has an email address to request a case by case exemption from the $100,000 fee, but it looks extremely difficult to obtain. USCIS has not (as allowed in the Proclamation) exempted any type of employer such as higher education or healthcare.
3. Customs and Border Protection and the US State Department have not issued parallel guidance but it appears that the USCIS guidance is the administration's policy.
4. There are two lawsuits already challenging the $100,000 rule, and we expect at least one to move quickly (perhaps within weeks). There is the American Association of University Professors (AAUP), and the U.S. Chamber of Commerce.

The Immigration and Nationality Act has a process for adding fees, based on the cost of adjudication, so we believe that the lawsuits have a good chance of success.

Background

The Proclamation relies on Section 212(f) of the Immigration and Nationality Act, which the administration has been using, including for the travel ban from certain countries. INA 212(f) has not been used in this way – to restrict entry for people based on how their petition was filed with USCIS. That will also certainly be challenged.

The Proclamation states it is based on alleged examples of H-1B program abuse. The two authors of this blog have decades of experience with the H-1B program. The vast majority of the H-1Bs we have seen have been bona fide – for healthcare workers, teachers, researchers, and a host of other occupations.

This Proclamation is an example of throwing the baby out with the bathwater. There were 442,425 H-1B petitions approved in 2024 – a significant part of the workforce. Data show that over 50% have advanced degrees, making also a highly skilled workforce overall.

There are existing important mechanisms to police the H1B program. Every new H-1B filed includes a $500 anti-fraud fee, and USCIS can and does conduct site visits. There are already resources to address any fraud in the system. This Proclamation creates fear and uncertainty for those using the H-1B program lawfully.

Other Provisions of the Proclamation

The Proclamation also importantly sets out a broad agenda for future limits to the H-1B program. It will be very important to follow these carefully.

• By spring 2026, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Secretary should submit a recommendation about extending the Proclamation.
• The Secretary of State will issue guidance about the "misuse" of B visas- some of this has come out already making it harder to get a B-1 in lieu of H-1B (a use of the B1 for employees of companies abroad).
• The Secretary of Labor will revise the prevailing wage levels and DHS will issue a regulation to prioritize the admission of high-paid workers.

The Proclamation has sparked interest in updating the H-1B program, and we will also be watching those efforts carefully including a bill just introduced in Congress on a bipartisan basis.

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