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Fee Applicability

The “Restriction on Entry of Certain Nonimmigrant Workers” is a presidential proclamation that introduced a $100,000 fee for specified H-1B visa petitions submitted after September 21, 2025.

On October 20, 2025, the U.S. Citizenship and Immigration Services (USCIS) released an update on the fee’s applicability: who must pay the fee, when and how it should be paid, and eligibility criteria for exemption.

The $100,000 charge does not apply to:

  • H-1B petitions filed before September 21, 2025.
  • Petitions filed on or after September 21, 2025, that involve an amendment, a change of status, or an extension of status for individuals who are already in the United States, provided these requests are approved.
  • Although USCIS did not explicitly mention change of employer petitions, these typically involve status extension and thus are generally considered exempt.
  • Beneficiaries approved under these conditions will not be required to pay the fee if they later leave the U.S. and apply for a new H-1B visa or seek admission in H-1B status.

The $100,000 fee applies to:

  • New H-1B petitions filed from September 21, 2025, onward for foreign nationals who are outside the U.S. without a valid H-1B visa.
  • Petitions requesting consular notification, port of entry notification, or pre-flight inspection for beneficiaries physically present in the United States.
  • Situations where a beneficiary is currently in a non-immigrant status within the U.S., but USCIS denies their change of status to H-1B. In this case, the employer must pay the fee for the beneficiary to apply for the H-1B visa abroad or seek admission in H-1B status.

Exemptions to the Fee

  • Contrary to previous assumptions, organizations exempt from the ACWIA cap—such as nonprofit universities, governmental bodies, and nonprofit research institutions—are not relieved from paying the fee.
  • USCIS outlined a very limited path for seeking a national interest waiver. Such waivers, granted solely at the discretion of the Secretary of Homeland Security, are reserved for “extraordinarily rare circumstances.”
  • To qualify, employers must prove that the foreign worker’s U.S. presence benefits national interests, that no U.S. worker can fill the role, that the individual poses no security or welfare risk, and that imposing the fee would harm U.S. interests.
  • Requests with supporting documentation should be sent to H1BExceptions@hq.dhs.gov.
  • Processing timelines remain unclear.

It is essential to note that these USCIS criteria for exemption are more restrictive than the broader provisions outlined in the original Proclamation, which allowed for industry-wide or company-wide exemptions deemed to be in the national interest.

Fee Payment Process

  • The required payment of $100,000 must be completed online via ACH transfer to the U.S. Treasury before filing the petition.
  • The payment portal indicates a full refund will be processed if the application is not approved. However, it is unclear if this applies solely to visa applications or also to petitions.
  • There is no explicit guidance on payment timing if a change of status request is denied.

Several lawsuits have been initiated challenging the legality of this fee. Among them are a lawsuit filed in the Northern District of California by diverse employers, including healthcare recruiters and unions, and a separate suit filed by the U.S. Chamber of Commerce in the District of Columbia alleging the fee is unlawful and harmful to American businesses.

Recommendations

Given ongoing uncertainties with the fee’s implementation and the unsettled regulatory environment, foreign nationals within the United States should exercise caution before planning travel abroad, particularly when needing to secure an H-1B visa.

The guidance is subject to change without formal rulemaking, and the government shutdown could limit consular services, causing delays. Travel should be flexible and coordinated closely with legal counsel and employers.