The guidance below is intended to help employers and employees navigate the H-1B filing process, avoid potential pitfalls, and provide clarity regarding if and when the $100,000 fee may apply to a particular petition. However, we strongly recommend discussing the specific facts of each individual case with your attorney at D&S.
Why is The H-1B Filing Process This Year Different?
In addition to the changes in the H-1B lottery discussed here, the introduction of the $100,000 fee for certain H-1B petitions has made the post-selection phase of the H-1B cap process more nuanced than in prior years. The new rules governing the $100,000 H-1B fee mean that routine cap-season decisions, such as filing strategy, employee location and status at the time of filing, and international travel during the filing process, now require even more deliberate planning.
Key Terms
Change of Status (COS): The COS filing allows a beneficiary who is already in the United States in another nonimmigrant status (such as F-1, L-1, or TN) to change to H-1B status without departing the country.
Consular Notification (CN): CN (sometimes referred to as consular processing) means the H-1B petition is approved by USCIS, but the beneficiary is outside the U.S. or must commence H-1B status via entry to the U.S. on or after October 1st which, with the exception of Canadians, requires applying for an H-1B visa stamp at a U.S. consulate.
$100,000 Fee: On Friday, September 19th, the Trump Administration signed the “H-1B Proclamation”, imposing a new $100,000 fee for certain H-1B petitions filed after September 21, 2025. The initial wording of the H-1B Proclamation was extremely vague and imprecise, making it difficult to determine when the fee would and would not apply. Following this initial chaos, separate clarifying guidance was issued. Most recently, updates to the USCIS website provide some important clarifications regarding the scope of the fee and the three (3) specific scenarios where it will apply, namely where:
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 ultimately found ineligible for that change or extension (e.g., not in valid status or departs U.S. before adjudication).
Best Practices for Not Triggering the $100,000 Fee
1. Default to Change of Status (COS) Filings Wherever Possible
It is common for many individuals who are eligible to file a COS H-1B to instead opt for a CN petition. Reasons include:
More travel flexibility over the summer (since you are not required to be in the U.S. to process the petition).
Maximizing time in current visa (F-1 OPT, TN, etc.) before beginning to use H-1B time (which generally has a 6 year limit).
Maximizing the period of time where F-1 students may be exempt from certain tax withholdings.
However, because CN filings now require employers to pay $100,000 per employee, unless eligible for a waiver, employers looking to avoid this fee should opt to have all H-1B petitions filed with a request for COS wherever possible.
2. Confirm Change-of-Status Eligibility Early
To qualify for COS, the employee beneficiary must:
Be physically present in the United States at the time of filing;
Be maintaining lawful nonimmigrant status; and
Remain in the U.S. through adjudication (e.g., until the case is approved by USCIS).
Failure to satisfy any of these requirements could result in USCIS denying the COS request and approving the case as a CN, which would subject that petition to the 100k fee.
Employers should carefully review each beneficiary’s immigration status well in advance of filing to confirm eligibility for a COS through adjudication. Prior immigration status violations can jeopardize the approvability of a COS petition, such that even where the petition is filed with a request for COS, if a status violation comes to light during adjudication, USCIS can issue a Request for Evidence (RFE) requiring proof payment of the fee before approving the petition for CN.
It is also important for employers to remember that if they file an H-1B petition which USCIS ultimately deems subject to the fee, employers have the option to withdraw the petition rather than pay the fee. If this is a strategy employers may wish to pursue and should clearly communicate this to impacted employees so that expectations are set early.
3. Closely Manage (and Generally Prohibit) International Travel During COS Filing
H-1B employers, after consulting with employment counsel, may wish to implement a “no travel” policy during the cap filing window or require employees to have all travel during that period pre-vetted and approved by the employer’s immigration counsel.
Because an employee’s physical presence in the U.S. during adjudication is a key factor in avoiding fee exposure, they must remain in the U.S. from the time the petition is filed until it is approved in order for the COS to be granted. International travel during the cap-season filing process should be strongly discouraged and reviewed in advance. If a beneficiary is outside the U.S. when the petition is filed or adjudicated, the petition may become subject to the fee.
4. Pay Particular Attention to F-1 OPT and STEM OPT Timelines
For F-1 beneficiaries, employers should verify that OPT or STEM OPT is valid, confirm cap-gap eligibility, and ensure all filing deadlines are met. Any gaps in status or work authorization during adjudication can create complications, including potential maintenance-of-status issues that could trigger the $100,000 H-1B fee. If a beneficiary is eligible for a STEM OPT extension during the filing window, this extension can be pursued alongside an H-1B change-of-status petition to preserve both options.
5. Plan for Extended Adjudication & Maintain Flexibility with Travel Plans
Requests for Evidence (RFEs) can extend adjudication timelines, even for petitions filed with a request for premium processing. Employers should ensure beneficiaries can maintain valid status and remain in the U.S. throughout the process, even if adjudication extends longer than anticipated. This includes beneficiaries maintaining flexibility in their travel plans as, if an RFE is issued for their petition, this could extend the period of time that they are required to remain in the United States.
6. Document U.S. Physical Presence
Maintaining records demonstrating the beneficiary’s presence in the U.S. at the time of filing and throughout adjudication may be helpful if questions later arise regarding the applicability of the fee. This can include I-94 Arrival/Departure records, CBP travel history, and entry/exit stamps in passports.
7. Escalate Higher-Risk Cases Early
Cases involving anticipated travel, status expiration dates shortly after April 1, or possible maintenance of status issues should be identified and reviewed early so employers can make informed decisions before filing.
8. Do Not Rely on National Interest Exceptions as a Strategy
USCIS has indicated that National Interest Exceptions (NIE) will be granted only in extraordinarily rare circumstances. It is also unclear what the timeline is for adjudicating these Exceptions, and it could extend beyond the 90-day H-1B filing window. Employers should assume such exceptions will not be available for most cap cases and plan filings accordingly.
9. Coordinate Early with HR and Business Stakeholders
Clear communication with HR, talent teams, and affected employees is critical. Ensuring all parties understand travel restrictions and status requirements during cap season can help prevent avoidable issues later in the process and can ensure clear and consistent messaging to employees or candidates relying on H-1B sponsorship.
10. Avoid Consular Processing Wherever Possible
Cap cases requesting consular notification, port-of-entry notification, or pre-flight inspection are likely to trigger the fee. While there remains a lack of clarity as to whether the fee will apply to CN petitions for beneficiaries who already hold a valid H-1B visa stamp, employers should reserve consular processing for situations where the beneficiary:
Will not be in lawful U.S. immigration status on April 1
Cannot lawfully enter/remain in the U.S. during the H-1B filing window (typically April 1 - July 30)
Has unavoidable travel during the filing window which impacts eligibility for COS
In these circumstances individuals will likely be subject to the $100,000 fee so employers should take care to identify these individuals in advance of the H-1B lottery and make a decision regarding whether they may be willing to pay the fee where no option to avoid it is available. Note, if an employer learns a filing is subject to the fee, they are not required to remit payment unless they want to proceed with adjudication of the case.
Conclusion
Additional advanced planning will be required for employers seeking to avoid payment of the $100,000 for employees selected in this year’s H-1B lottery. Employers should identify employees they wish to sponsor early so that they can be properly vetted, cases can be fully strategized, issues can be spotted early, and expectations can be clearly and consistently set for sponsored employees.
The above information is for informational purposes only and should not be construed as or relied upon as legal advice.