Presidential Proclamation Related to $100,000 H-1B Payment Update

On October 20, 2025, U.S. Citizenship & Immigration Services (USCIS) issued additional guidance on implementing the $100,000 H-1B payment including how to make the payment, and information on how to request an exception to the $100,000 fee via email to H1BExceptions@hq.dhs.gov, as applicable.

The exception criteria are tougher than expected and seemingly require some indicia of a lack of availability of a U.S. worker for the H-1B position. 

Ongoing Presidential Proclamation Litigation

Litigation regarding the legality of the proclamation’s required $100,000 H-1B payment remains ongoing via two separate lawsuits, including the lawsuit filed by the U.S. Chamber of Commerce on October 16. Both lawsuits seek to block implementation of the proclamation’s $100,000 H-1B payment and provide strong legal authority for same. Until there is movement in the courts, employers must follow USCIS’ newly released guidance instructing companies and practitioners when the additional $100,000 fee must be paid. 

H-1B Payment Is Not Required:

USCIS clarified that the $100,000 H-1B payment is not required even where H-1B petitions are filed after 12:01 AM on September 21, 2025, provided that the employer’s request for H-1B approval with a corresponding request for a change or extension of status or amendment from within the U.S. is granted. Therefore, the payment is not required when the employer files the following: 

1. Change of status petition (including change of status for H-1B cap cases), where an employer seeks to change an employee’s status from one category to another within the U.S., such as a request to change status from F-1 status to H-1B status, or from L-1 status to H-1B status. 

2. Extension of status petition where an employer requests to extend an employee’s H-1B status from within the U.S., including change of employer (H-1B portability) petitions.

3. Amended petition where an employer is seeking to amend the terms of the H-1B such as to inform USCIS of a change in worksite location or substantive change to job duties. 

4. Note: H-1B payment is also not required where the employee beneficiary outlined in one of the above scenarios leaves the U.S. to apply for a visa based on the approved petition or seeks to re-enter the U.S. on a current U.S. H-1B visa.

Below is recently confirmed information from USCIS regarding when the new H-1B payment is required:

H-1B Payment Is Required:

1. The payment is required for new H-1B petitions filed at or after 12:01 AM eastern daylight on September 21, 2025, on behalf of a beneficiary outside the U.S. without a valid H-1B visa.

2. The fee is required for H-1B petitions filed at or after 12:01 AM eastern daylight on September 21, 2025, where the petition requests consular notification, port of entry notification, or pre-flight inspection for an individual inside the U.S.

3. If a sponsored employee leaves the U.S. before receiving any decision on an H-1B change of status application filed at or after September 21 at 12:01 AM, then the payment would be required since the employer’s request would be treated as a request for a consular approval. 

In conclusion, the payment is required where an H-1B petition is filed on or after 12:01 AM September 21, 2025, on behalf of someone who is outside the U.S. without a valid H-1B visa or where the H-1B filing requests consular notification, port of entry notification, or pre-flight inspection entry notification. 

Payment Instructions:

The $100,000 H-1B payment must be paid using pay.gov prior to filing any H-1B petition subject to the $100,000 fee. Evidence of making the payment must be included with the filed petition. However, the ONLY acceptable form of payment for the $100,000 fee is Bank Account ACH (likely due to the per credit card/per day transaction limitations of pay.gov). Click here for more on filing fees.

Key Takeaways: 

• Employers should consult with legal counsel to ensure the employers understand their payment liability for their potential H-1B cap population. 

• Because of reports of less international student enrollment overall and due to the H-1B weighting rule, employers may have less foreign student employees to register during the H-1B cap registration period.  

• Employers that typically file H-1B cap petitions for those outside the U.S. and request consular notification may file less registrations this year than in the last several years. 

• Litigation is pending regarding the legality of the $100,000 payment so guidance may change again. 

• Because of the above, employers are cautioned to start H-1B cap planning early and to consult with legal counsel to stay abreast of changes.

Examples of Various Scenarios and Sample Responses Regarding Whether the $100,000 Payment Applies under these Facts:

1. I was granted an H-1B change of status petition last year, but I never left the U.S. and applied for a visa. Does the $100,000 payment apply when I leave to obtain my visa and seek re-entry?

Response: No. Your petition was filed last year (i.e. before September 21, 2025) and the change of status was approved without your leaving the U.S. The payment is not required.

2. My employer seeks to sponsor a change of status H-1B cap case on my behalf. I am maintaining my F-1 status. My employer will request the H-1B change of status and an extension of stay via H-1B filing in April 2026. When my change of status and extension of stay is approved, does the $100,000 payment apply? 

Response: No. Your petition was filed as a change of status H-1B petition, and the extension was approved within the U.S., so the additional $100,000 payment is not required.

3. My employer filed an H-1B change or status petition on my behalf in June 2025. It was approved as a change of status. It’s now 2026 and I would like to return home to apply for my first H-1B visa based on this approved petition. Does the $100,000 payment apply?

Response: No. Your petition was approved as a change of status in the U.S. Once you leave the U.S. to apply for a visa based on the approved petition or seek to re-enter the U.S. on a current U.S. H-1B visa, the $100,000 payment is not required. (This is also true when someone is applying for an H-1B visa based on an approved petition for extension of status filed after September 21, 2025.)

4. I am outside the U.S. working for an entity in my home country. The U.S. employer filed a consular H-1B petition on my behalf on September 25, 2025. It has been approved for consular notification. Does the $100,000 payment apply? 

Response: Yes. Your petition was filed after September 21, 2025, and the requested action was consular notification. 

5. I am Canadian and my future employer plans to sponsor me for an H-1B cap case to be effective October 1, 2026. Since I am outside the U.S. would they have to request pre-flight inspection or port-of-entry notification? Does the $100,000 payment apply? 

Response: Yes. Because the H-1B petition would be filed after September 21, 2025, and would request a port-of-entry or pre-flight inspection approval, the $100,000 payment would apply. 

6. My employer has filed an extension of H-1B status on my behalf on October 5, 2025. I have been maintaining status and qualify for an extension of status. Does the $100,000 payment apply? 

Response: No. Although the filing occurred after September 21, 2025, as long as the filing is approved as an extension of status in the US, or a change of status in the US, then you are not subject to the $100,000 fee payment.

7. My H-1B was approved as a change of status on October 1, 2025. Then, I moved to a new worksite location and my employer filed an amended petition and a request to extend my stay. It was approved as an extension of stay. Does the $100,000 payment apply?

Response: No. Although the filing was after September 21, 2025, you were in the U.S., and the extension was granted.

For any questions related to the above information or for any other immigration related query, please contact Lynn.OBrien@wbd-us.com or ImmigrationTeam@wbd-us.com.