USCIS Clarifies the $100,000 H-1B Fee Proclamation

On October 20, USCIS released additional guidance relating to the September 19 Proclamation titled, “Restriction on Entry of Certain Nonimmigrant Workers.”

This alert builds on the September 21 Client Alert titled “Current Analysis of the H-1B Entry Restrictions and Application of the $100,000 fee.”

Relevant Sources

• On September 19, 2025, President Trump published a Proclamation titled “Restriction on Entry of Certain Nonimmigrant Workers.”
• On September 20, 2025, USCIS released a memorandum seeking to clarify the Proclamation.
• Later that day, CBP also released a memorandum.
• On September 21, 2025, the DOS and the White House released FAQ pages related to the Proclamation.
• On September 29, the U.S. Embassy of Singapore posted that “The recent presidential proclamation regarding H-1B visas does not apply to the H-1B1 visa for Singaporean citizens. There is no change to the H-1B1 process at this time.”
• On October 20, USCIS updated the H-1B Specialty Occupations page to include a section titled “Presidential Proclamation on Restriction on Entry of Certain Nonimmigrant Workers.”

What We Know

The October 20 USCIS guidance provides clarity and confirms our understanding of several issues:

• If someone is outside of the US but has a valid H-1B visa, they are not subject to the $100,000 H-1B fee payment.
• H-1B petitions requesting: a change of status, amendment, or extension of stay are not subject to the $100,000 payment, unless that request for change, amendment, or extension is denied (effectively approving the petition for consular notification).
• The Proclamation does not prevent any holder of a current H-1B visa, or any beneficiary following petition approval, from traveling in and out of the United States.
• The payment instructions are clear: for new H-1B petitions on behalf of individuals outside the United States, payment must be made before the petition is filed.

What We Don’t Know

• The October 20 guidance did not mention H-1B1 visas. As such, we still have no clarity on whether the Proclamation applies to Chileans and Singaporeans applying for H-1B1 visas.
• The October 20 guidance does not define a “valid” H-1B visa for purposes of being subject to the $100,000 payment. For example, a job candidate may be outside the United States but have an unexpired H-1B visa issued during prior employment as an H-1B. That visa is unexpired and is valid for use with a new H-1B petition by a new employer. That visa is not valid for entry, however, unless and until a new H-1B petition is approved.  
• For new H-1B petitions where the beneficiary is requesting a change, amendment, or extension of status, the fee will not become payable unless the request for the change, amendment, or extension is denied, at which point the employer should still have the option to avoid the $100,000 fee by withdrawing the petition, but this guidance does not explicitly cover that scenario.

Strategic Takeaways

• Based on the guidance received up to this point, it seems that there is an opportunity to change from another status (e.g., visitor/exchange visitor/student status) to H-1B. Therefore, cap-exempt employers should consider the opportunity to work with J-1s and F-1s who can change to H-1Bs in the future.
• Further, it seems likely that submitting entries into the H-1B cap lottery process for next year will not be subject to the Proclamation’s $100,000 H-1B fee if a change of status can be filed and is approved.

H-1B Proclamation Impact Chart[1]^, [2]

FAQs About the $100,000 H-1B Fee

1. How and when can I pay the $100,000 Fee?
   • Use pay.gov to submit the payment.
   • Include proof of payment or evidence of an exception from Department of Homeland Security (DHS) at the time of filing the H-1B petition.
   • Petitions without proof of payment or exception will be denied.
2. Can the employee help the employer pay the $100,000 fee?
   • The October 20 guidance did not provide any additional information relating to whether an employee may cover or can contribute to the fee payment. Department of Labor regulations, however, prohibit employers from seeking or permitting payment of any of their business expenses (including H-1B related fees and expenses) by the H-1B employee.
3. Are there any exceptions to the $100,000 H-1B fee?
   • Exceptions are described as “extraordinarily rare” and must meet the following criteria:
     • The particular worker is deemed by the DHS Secretary to be “in the national interest”;
     • No American worker is available to fill the role;
     • The worker does not pose a threat to the security or welfare of the United States; and
     • Requiring the employer to make the payment would significantly undermine the interests of the United States.
   • If an employer believes their petition satisfies the above criteria, then they “may seek an exception by sending their request and all supporting evidence to H1BExceptions@hq.dhs.gov.”
4. When does the payment go into effect?
   • Certain H-1B petitions filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, must be accompanied by an additional $100,000 payment as a condition of eligibility.
5. Who is subject to the payment?
   • The Proclamation applies to new H-1B petitions filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, on behalf of beneficiaries who are outside the United States and do not have a valid H-1B visa.
6. Who is not subject to the payment?
   • Individuals who already hold an approved H-1B petition.
   • Individuals who filed a new H-1B petition prior to September 21, 2025.
   • Individuals who already hold an approved H-1B petition filing an amendment, change of status, extension, or change of employer.
7. What does this mean for the 2026 lottery?
   • The White House FAQ explicitly states, “This includes the 2026 lottery.”
   • However, we now know from the October 20 USCIS guidance that lottery approvals will seemingly not be subject to the $100,000 fee if the employee files a change of status that is approved.
8. Are H-1B1s included under the Proclamation?
   • Currently, we know that Singaporean H-1B1s are not impacted by the Proclamation according to the United States Embassy in Singapore’s website, but we do not have the legal basis for that determination.
   • We continue to seek guidance as to whether Chileans are also exempt.

For specific guidance on the $100,000 H-1B fee for your workforce, please reach out to your Klasko Immigration attorney for custom advice.

[1] The chart is applicable to both H-1B cap-exempt and non-exempt employers and both H-1B cap-subject and cap-exempt petitions.

[2] The Administration’s current guidance has not fully clarified potential impacts on H-1B1 applicants. US Embassy Singapore has confirmed that Singaporean H-1B1 visa applicants are not subject to the $100,000 fee. US Embassy Chile has not yet confirmed the same.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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