Key Points

• The Proclamation’s $100,000 fee applies to most H-1B petitions received by USCIS on or after Sept. 21, 2025, for those who are outside the U.S. without valid H-1B visas.
• Payment must be made through pay.gov before filing an H-1B petition. Proof of payment or of a national interest exception (NIE) must be submitted with Form I-129 or USCIS will deny the petition.
• Exceptions are described as extremely rare and granted only by the Secretary of Homeland Security to an employer on behalf of a specific beneficiary.

USCIS has issued detailed guidance on the President’s Sept. 19, 2025 proclamation, "Restriction on Entry of Certain Nonimmigrant Workers," which imposes a new $100,000 H-1B payment requirement. Key provisions affecting employers are summarized below.

Who Must Pay the $100,000 Fee?

Petitions Subject to the Proclamation

The $100,000 payment applies to H-1B petitions filed at or after 12:01 a.m. EDT on Sept. 21, 2025, if:

• The beneficiary is outside the United States and does not have a valid H-1B visa.
• The H-1B petition requests consular notification, port of entry notification or pre-flight inspection for a worker currently in the United States.
• USCIS determines that the beneficiary is not eligible for a requested change of status or extension/amendment (e.g., beneficiary is not in valid nonimmigrant status or departs the U.S. before H-1B petition adjudication).

Petitions NOT Subject to the Proclamation

The following situations are exempt from the $100,000 payment:

• Currently valid H-1B visa issued prior to September 21, 2025.
• Petition submitted before 12:01 a.m. EDT on September 21, 2025.
• Petition requesting an amendment, change of status or extension of stay for a worker who is inside the U.S. if USCIS grants the worker such amendment, change, or extension of status.
• Worker granted an amendment/change/extension of status in the U.S. and subsequently departs the U.S., applies for an H-1B visa based on the approved petition and/or seeks to reenter the U.S. on their current H-1B visa.
• Holder of current H-1B visa traveling in and out of the United States.
• Worker who received approval of an NIE request prior to filing an H-1B petition.

Important Note: If USCIS finds a worker ineligible for an in-country change, amendment or extension of status, the $100,000 payment will be required according to USCIS instructions.

Payment Procedures for Petitions Subject to the Fee

How to Pay

Employers must submit payment through pay.gov at: https://www.pay.gov/public/form/start/1772005176

When to Pay

• Payment must be made before filing the Form I-129 H-1B petition with USCIS.
• Proof that payment has been scheduled from pay.gov is needed when filing the H-1B petition unless the Secretary of Homeland Security has granted a national interest exception to the fee.
• Petitions filed without proper proof of payment or an exception will be denied.

Exceptions: National Interest Determinations

Eligibility Criteria Announced

Exceptions may be granted to employers on behalf of specific workers, and only in extraordinarily rare circumstances where the Secretary of Homeland Security determines ALL of the following:

• The worker's presence in the United States as an H-1B worker is 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.
• Requiring the employer to make the payment would significantly undermine the interests of the United States.

No mention was made of company-wide nor industry-wide exceptions.

How to Request an Exception

Employers who believe their worker/prospective worker meets this high threshold should:

• Send their request and all supporting evidence to: H1BExceptions@hq.dhs.gov
• Provide comprehensive documentation demonstrating satisfaction of all four criteria.
• Allow sufficient time for review before the filing deadline. NIE application processing times were not provided and will likely vary over time.

H-1B Portability and Change of Employer

Changing Employers

• Portability provisions remain in effect, but compliance with payment requirements is mandatory for subject petitions.
• Pursuant to H-1B portability, an H-1B worker changing employers may still begin to work for the new employer when USCIS receives the new employer’s properly filed, non-frivolous H-1B petition.
• If the new employer’s H-1B petition is subject to the $100,000 fee, proof of payment must be submitted with the H-1B petition.

Cap-Exempt to Cap-Subject Transfers

• Transfers from cap-exempt to cap-subject positions remain subject to standard H-1B cap procedures.
• The $100,000 fee criteria must be checked.

Steps Employers Can Take

• Review pending H-1B petitions: Identify which petitions may be subject to the new fee based on filing dates and worker circumstances.
• Review upcoming H-1B cases: Identify which petitions may be subject to the new fee based on worker circumstances.
• Factor the $100,000 fee into immigration costs for new hires and transfers from outside the U.S.
• Ensure internal H-1B preparation procedures require pay.gov payment and proof submission before filing petitions.
• Assess whether any workers may qualify for the very rare national interest exception.
• For workers outside the U.S., consider whether consular processing or alternative strategies such as working from abroad temporarily may be appropriate.
• Assess possible alternative temporary statuses, green card options, etc., as needed, although they may be limited.

Additional Considerations

• Extensions and amendments for workers in valid status in the U.S. can avoid the fee if the worker remains in the United States.
• Workers with valid H-1B visas can continue to travel abroad and seek readmission to the U.S. without triggering the fee for their existing status.

For additional information on the H-1B program, contact the author Catherine Wadhwani at cwadhwani@foxrothschild.com or 412.394.5540.

This information is intended to inform firm clients and friends about legal developments, including the decisions of courts and administrative bodies. Nothing in this alert should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this alert without seeking the advice of legal counsel. Views expressed are those of the author(s) and not necessarily this law firm or its clients. Prior results do not guarantee a similar outcome.