What’s Happening
On October 20, 2025, the United States Citizenship and Immigration Service (USCIS) updated the H-1B Specialty Occupation page of its website with additional information about the new $100,000 H-1B fee, including additional clarification on its scope, how the fee can be paid, and how National Interest Exceptions can be requested.
What you Need to Know
Scope of Who is Subject to Fee
The updates to the USCIS website provide some important clarifications regarding the scope of the fee and clarifies that the fee applies in 3 scenarios to H-1B petitions filed on or after the September 21st effective date, when:
The beneficiary is outside the U.S. and does not have a valid H-1B visa.
The petition requests:
Consular notification
Port of entry notification
Pre-flight inspection, even for beneficiaries currently inside the U.S.
The petition requests a change of status, amendment, or extension of stay, but:
The H-1B beneficiary is found ineligible for that change or extension (e.g., not in valid status or departs U.S. before adjudication).
The update further confirms that the fee does NOT apply to:
Any previously issued and currently valid H-1B visas;
Any petitions submitted prior to the September 21st effective date, including where the beneficiary following petition approval, travels in and out of the United States; or
Any petition filed on or after the September 21st effective date that is requesting an amendment, change of status, or extension of stay for a beneficiary who is inside the United States where they are granted such amendment, change, or extension.
The proclamation further clarifies that such beneficiaries will not be subject to the fee if they later depart the United States and apply for a visa based on the approved petition and/or seek to reenter the United States on a current H-1B visa.
Note that this new guidance does not explicitly address H-1B change of employer petitions but, when the provisions are read together, it appears to indicate that so long as such beneficiaries are in the U.S. at the time their change of employer petition is filed and while it is being adjudicated, they should not be subject to the fee upon subsequent international travel.
How to Pay the Fee
The website update also provides a link to the website where petitioners must remit the payment.
USCIS indicates that petitions subject to the fee must be filed with confirmation of payment or proof of an approved exception or the petition will be denied, and also confirms that the fee will be refunded in full if the H-1B petition is ultimately not approved.
National Interest Exceptions
Finally, the website update confirms that exceptions to the fee can be requested and will be granted by the Secretary of Homeland Security in “extraordinarily rare circumstances.” Factors that the Secretary will consider when granting exceptions include:
That a particular H-1B beneficiary’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 H-1B beneficiary 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 H-1B beneficiary’s behalf would significantly undermine the interests of the United States.
The website instructs petitioning employers to send National Interest Exception requests along with all supporting evidence to H1BExceptions@hq.dhs.gov.
The website does not provide any information about anticipated processing times for such requests or how USCIS and Petitioner’s will document that their request has been approved to submit along with impacted H-1B petitions.
Guidance to Employers
While D&S and the immigration bar at large are still reviewing the updated guidance at present the following is information for employers to keep in mind:
Litigation Is Ongoing - Two lawsuits have been filed challenging the legality of the H-1B fee, but litigation remains ongoing and D&S is monitoring both lawsuits closely.
Additional Clarifications Still Needed - While this updated guidance does provide some additional clarity on the practical application of the fee, several questions remain outstanding and D&S will continue to provide updated guidance as more information becomes available. Employers who are considering filing a petition that may be subject to the fee are encouraged to continue to consult with the team at D&S.
International Travel Strongly Discouraged During H-1B Filing Process - An employee’s physical presence in the U.S. during petition adjudication is a key factor in avoiding the $100,000 fee. Therefore, any planned international travel by the beneficiary during the H-1B filing process should be reviewed in advance as if the beneficiary is outside the U.S. when the petition is filed or adjudicated, may result in the the petition becoming subject to the fee.
D&S is continuing to monitor the developing situation and will provide updates as they become available.