USCIS Issues New Guidance On Presidential Proclamation Imposing $100,000 Fee For Certain H-1B Workers

• The scope of the fee has been narrowed: The new guidance clarifies that many workers already in the U.S. are exempt from the $100,000 fee. The fee primarily applies to foreign nationals who, after September 21, 2025:
  • are outside the U.S. without a valid H-1B visa stamp; and
  • do not have a valid H-1B approval notice showing an extension, amendment, or change of status approval by USCIS.
• Possible higher odds of selection in H-1B lottery: Foreign workers already in the U.S. who are entered into the annual H-1B lottery may benefit from a higher rate of selection due to reduced competition from applicants outside the U.S.
• Potential long-term uncertainty: The original proclamation and follow-up guidance from the government has been imprecise. However, as written, the new guidance appears to state that H-1B workers, in certain circumstances, can trigger the new fee long after an initial grant of H-1B status. Thus, if the guidance survives pending legal challenges – and is implemented as written – it will be essential for employers to work closely with immigration counsel to:
  • closely vet all candidates requiring H-1B sponsorship (including new hires and candidates for entry into the H-1B lottery);
  • ensure full compliance and continuous maintenance of status for existing H-1B workers; and
  • begin proactively planning for the permanent residence (green card) process early on in an employee's H-1B lifecycle.

Applicability of the $100,000 Fee

1. Workers already in the U.S. are generally not subject to the fee, with certain exceptions.

• The fee does not apply to workers who are already in the country maintaining valid H-1B status (i.e., who have not committed any technical status violations).
  • These individuals may continue traveling in and out of the U.S. – and applying for H-1B visa stamps at U.S. consulates in their home country – without triggering the new fee.
  • They also remain eligible for amendments or extensions of status without triggering the fee.
• The fee does not apply to foreign nationals in the U.S. in an immigration status other than H-1B (e.g., F-1 students), who request a change of status to H-1B, so long as USCIS approves their request to change status (i.e., so long as they do not commit any technical status violations).
  • Additionally, these individuals will not trigger the new fee when they travel internationally to apply for an H-1B visa stamp.
• Exception: The fee does apply to foreign nationals who are in the U.S. (whether in H-1B status or another immigration status) but do not have a valid H-1B visa stamp in their passport, and whose H-1B petition is approved for "consular notification, port of entry notification, or pre-flight inspection."
  • Typically, H-1B petitions are approved in this manner when: (1) the H-1B petition affirmatively requests such an action (rather than an extension, amendment, or change of status); or (2) the foreign national is ineligible for an extension, amendment, or change of status – usually because he or she committed a technical status violation.

2. Workers outside the U.S. generally are subject to the fee, with certain exceptions.

• If the new guidance is implemented as currently written, the fee does apply to foreign nationals abroad who, after September 21, 2025, have an H-1B petition filed and:
  • Have never held H-1B status and are selected in the annual H-1B lottery or sponsored for H-1B status by a cap-exempt employer, for the first time.
  • Have previously held H-1B status but were required to briefly depart the U.S. to cure a technical status violation, and do not have a valid H-1B visa stamp.
  • Have previously held H-1B status but were required to depart the U.S. due to difficulty finding an H-1B sponsor (e.g., following a layoff), and do not have a valid H-1B visa stamp.
  • Have previously held H-1B status but were required to temporarily depart the U.S. due to complications with the green card process.
• Exception: The fee does not apply to foreign nationals outside the U.S. (without a valid visa), if they have a valid H-1B approval notice showing USCIS approval of a request for extension, amendment, or change of status.

Rare National Interest Exceptions

1. The new guidance provides no blanket exceptions to the fee.
2. Additionally, the guidance states that National Interest Exception requests must meet an extremely high standard and will be granted only in "extraordinarily rare" circumstances.

Practical Implications

1. On one hand, the policy may result in better odds of selection inthe H-1B lottery; but on the other, it may increase long-term risks and uncertainty for H-1B workers.

• Workers who are already in the U.S. and entered into the annual H-1B lottery may benefit from improved odds of selection. However, those workers will need to avoid any technical status violations, as well as international travel during the H-1B process, to ensure they do not trigger the fee.
• If the guidance is implemented as written, technical violations and interruptions to the continuous maintenance of H-1B status may subject workers to the fee long after their initial grant of H-1B status.
  • Such violations may include failure to timely report changes in worksites – including changes to home office worksites – or material changes to job duties. They may also include any work (including self-employment) not authorized by USCIS.
  • Delays or complications in the green card process may also interrupt maintenance of status and expose workers to the fee long after their initial grant of H-1B status is approved.
• The new guidance requires employers to pay the $100,000 fee, where applicable, prior to filing a petition with USCIS. Petitions subject to the $100,000 payment that are filed without a copy of the proof of the payment, or evidence of an exception, will be denied.
  • If the guidance is implemented as written, USCIS would deny the petition without refunding any of the other H-1B filing fees.

Recommendations for Employers and Employees

1. Employers should work closely with immigration counsel to ensure their H-1B program is fully compliant, and to closely vet candidates for H-1B sponsorship – including new hires "transferring" their H-1B from a prior employer, and existing employees being considered for the H-1B lottery.
2. Employers should advise immigration counsel as early as possible of any anticipated changes to the terms and conditions of H-1B employment, such as changes in worksites (including home offices), promotions or lateral moves, or substantial changes to job duties.
3. Employers should proactively initiate green card discussions with immigration counsel. Initiating green card conversations early on can help ensure critical milestones are timely completed, which can help minimize the likelihood of triggering the fee years into the employee's H-1B tenure.
4. Employees should communicate international travel plans to employers well in advance, so they can be assessed by immigration counsel.
5. Employees may find it prudent to ensure the H-1B visa stamp in their passport is always valid. While a valid visa stamp is not legally required while inside the U.S., it may serve as a safety net that can help avoid the unexpected triggering of the $100,000 fee.
6. Employees in a remote/hybrid work arrangement should proactively communicate changes to their home office address to their employer, before any change occurs.

Ballard Spahr will continue to monitor the implementation of this guidance, as well as pending litigation.