Background: The New $100,000 H-1B Fee

On September 19, 2025, the White House issued a presidential proclamation dramatically changing the H-1B visa landscape. This proclamation – titled “Restriction on Entry of Certain Nonimmigrant Workers” – imposes a new $100,000 fee on certain H-1B petitions and effectively acts as an entry restriction for those who don’t pay. It went into effect at 12:01 a.m. Eastern on September 21, 2025, and is slated to remain in force for 12 months (until September 21, 2026) unless extended.

The stated goal of this unprecedented fee is to deter abuse of the H-1B program and “put American workers first.” In practice, it means employers filing H-1B petitions for workers outside the United States may now face an astronomical additional cost. The sudden announcement and immediate implementation of this policy created significant confusion among employers and H-1B visa holders. Over the initial weekend of the proclamation, many were uncertain who exactly needed to pay the $100k and who was exempt.

As of September 22, 2025, government agencies have provided some clarifications, but there are still important gray areas. Below we break down what we currently know for sure, and what remains uncertain, about the $100,000 H-1B fee.

What We Know So Far (Confirmed Facts)

Based on the text of the proclamation and official guidance released in the days following, several points are now relatively clear:

• Applies to New Petitions filed after 9/21/2025 for Workers Outside the U.S.: The $100,000 fee must be paid for any new H-1B petition filed on or after September 21, 2025 if the sponsored worker is outside the United States at the time of filing. In other words, any petition to bring in an H-1B employee from abroad now triggers this hefty one-time charge.
• Covers Both Cap-Subject and Cap-Exempt H-1Bs: The fee requirement isn’t limited to H-1Bs filed through the annual lottery. It also applies to “cap-exempt” H-1B petitions (such as those by universities, nonprofit research institutions, or government research organizations) filed after the effective date, as long as the beneficiary is outside the U.S. No category of H-1B employer is inherently exempt from the fee solely by cap status – what matters is the worker’s location. However, there are rumored exemptions that might be coming, so stay tuned for more information.
• One-Time Fee for H-1B Petitioners that are required to pay: The $100,000 is intended as a one-time payment, not a yearly “subscription” as was announced at the signing. White House officials have clarified that this fee is not required for those who already hold H-1B status or visas. In other words, it’s not a recurring annual fee or something that existing H-1B workers must pay to stay on their visa. It’s a steep upfront cost aimed at initial H-1B entries. What is not abundantly clear is how this will impact future travel.
• Does Not Apply to Current H-1B Visa Holders in the U.S.: Importantly, the proclamation does not impose the fee on H-1B petitions filed for people who are already in the United States in H-1B status. If a worker is currently in the U.S. on H-1B  and their employer files an H-1B extension, amendment, or change of employer (transfer) petition while they remain in the U.S., the $100,000 fee is not required. These in-country petition types are being processed normally, since the President’s authority (under INA §212(f)) is limited to restricting entry of foreign nationals from abroad, not to applications by people already inside the country. While there has been some debate about transfers, the fact that this is a 212(f) entry ban leads us to believe that it does not apply to transfers. If more clarity comes, we will update
• Does Not Affect Petitions Filed Before Sept. 21, 2025: The policy is prospective only. Government guidance has made clear that any H-1B petition filed before the effective date is not subject to the new fee, even if the person is/was overseas. Similarly, if a petition was filed prior to Sept. 21, it’s grandfathered under the old rules. Beneficiaries of already-filed H-1B petitions (or those who had a valid H-1B visa issued) do not suddenly have to pay $100k to use their visa or approval. For example, an H-1B worker who obtained a visa stamp earlier in 2025 and happened to be abroad when the proclamation took effect can still travel back to the U.S. on that visa without paying the new fee.
• Immediate Impact on Upcoming H-1B Lottery: The next H-1B cap filing season (for the fiscal year 2027 quota, with petitions to be filed by spring 2026) will be directly affected. Any H-1B cap-subject petition filed in that lottery for a beneficiary outside the U.S. will require the $100,000 payment. (Those cap cases would have start dates of October 1, 2026, which is right around when the proclamation might expire – more on that in the uncertainty section below.) Employers planning for the lottery should budget accordingly if they intend to sponsor candidates currently overseas. What is not abundantly clear is change of status petitions. While the text of the proclamation and § 212(f) would not apply to those, some of the communications give us pause.
• Applies to those outside the US counted against the cap: Even outside the context of the lottery, the fee appears to apply to other new H-1B filings for overseas workers. This includes cases, when the employee is counted against the H-1B cap, but not in the US– for example, if a foreign professional previously held H-1B status and has unused time, a U.S. employer can file a new petition to bring them back without going through the cap again. However, because that petition filed now would be for an individual currently abroad, it would fall under the proclamation. So even though the person was counted against the cap in the past, the employer must pay $100,000 if filing to re-employ them now from outside the country.
• Official Guidance Confirms Key Exemptions: By September 21-22, agencies like USCIS and CBP had issued guidance clarifying these points. USCIS instructed its officers that the proclamation “only applies prospectively to petitions not yet filed” as of Sept. 21. It explicitly stated that the fee does not apply to anyone who is the beneficiary of a petition filed before that date, anyone who already has an approved H-1B petition, or anyone who already holds a valid H-1B visa stamp. Customs and Border Protection similarly confirmed that H-1B visa holders currently abroad would be allowed to enter without a $100k payment, provided their petition was approved prior to the effective date. These assurances have eased the immediate panic for individuals who were caught outside last weekend.

To summarize the confirmed scenarios:

H-1B $100,000 Fee – Who Must Pay vs. Who Is Exempt

What We Don’t Know Yet (Unresolved Questions)

While the fundamentals of the new fee are understood, several gray areas remain. These are questions that the proclamation or current guidance haven’t fully answered as of 9/22/25:

• If an In-Country Petition Holder Travels, Will They Get Hit with the Fee? This is perhaps the biggest uncertainty. Suppose an employer files an H-1B petition after Sept. 21, 2025 for someone who is already in the U.S. (thus no fee was required at filing, and the petition gets approved). What happens if that person later needs to travel abroad and apply for an H-1B visa stamp to re-enter? The White House has said the proclamation does not prevent current H-1B visa holders from traveling and that the fee is not meant for renewals or existing visa holders. However, the White House’s own FAQ wording – saying the fee applies to “any other H-1B petitions submitted after” Sept. 21 – has raised concern among attorneys. It could be interpreted that if you have an H-1B petition filed after the effective date, you might be considered a “new” case subject to the fee upon re-entry, even if you didn’t pay initially. There is no clear official instruction yet on how consulates or border officers will treat these situations. Until more guidance is issued, many immigration lawyers are advising caution – essentially, if you obtained an H-1B approval after Sep. 21 (without paying the fee because you were in the U.S.), you might want to avoid international travel for now to be safe. We simply need more clarification on this point.
• Employees counted against the cap outside the US: As noted above, if a foreign national was previously in H-1B status (already counted against the cap) but is currently outside the country, any new petition to bring them back now seemingly requires the fee. The logic is that the proclamation doesn’t distinguish between cap-subject and cap-exempt or new versus returning workers – it only cares whether the person is outside the U.S. and the petition is filed after the effective date. Some have wondered if such cases might be considered “renewals” (since the person held H-1B before) and thus exempt, but nothing official has carved out an exception for them. Until told otherwise, employers should assume these cases will incur the fee. This can be a harsh result for employers hiring back someone who has years of H-1B eligibility left, but it appears to be how the rule is written.
• F-1 to H-1B Change of Status vs. Consular Processing: Similar questions arise for H-1B cap cases involving foreign students or others already in the U.S. on a different visa. If an F-1 student in the U.S. is selected in the H-1B lottery next spring, they will likely file for a change of status to H-1B (so they can start working without leaving the U.S.). In that scenario, no fee would be required because the person is in the U.S. during the process. But what if that same individual later decides to travel abroad after October 1, 2026 (once they are in H-1B status) – will they need to somehow pay $100k to get their visa stamp? Or alternatively, what if the employer chose to file the H-1B as “consular processing” (meaning the person would activate H-1B by leaving and getting a visa) – would the fee have to be paid then because the person will be abroad for stamping? These nuances remain unanswered. The safe assumption is that any time an H-1B petition is filed for someone outside the country (or who will be outside to activate it), the fee comes into play. However, we expect further guidance from USCIS and the State Department to clarify whether change-of-status beneficiaries can travel freely later without being treated as “new entrants” subject to the fee. As of now, that’s an open question.
• Process for National Interest Exemptions: The proclamation gave the Secretary of Homeland Security discretion to exempt certain individuals, employers, or industries from the $100k fee if their employment is deemed in the national interest and not a threat to U.S. workers. There have been media reports (for example, mentioning medical doctors) suggesting the administration might use this power to spare some groups – in particular, to avoid crippling healthcare staffing by making foreign physicians pay $100k. However, as of 9/22/25 no specific exemptions have been officially announced. It’s unclear how one would request or qualify for an exemption, or if DHS will proactively designate certain job categories as exempt. We are watching to see if healthcare workers, researchers, or other critical occupations get relief. Until an announcement is made, no one should assume they’re exempt – the fee applies across the board, even to doctors and nonprofit universities, unless and until DHS says otherwise.
• Mechanism of Payment and Implementation: Another practical unknown is how, exactly, the $100,000 fee is to be paid and tracked. The proclamation requires employers to obtain proof of payment before filing and for the State Department to verify payment before issuing a visa. USCIS is presumably working on the logistics (e.g., will there be a special form or online system to submit this payment, or will it be a check sent with the petition?). Early guidance simply instructed employers to retain evidence that the payment was made. As of now, the fine details of payment processing haven’t been fully published. Employers who need to file affected cases should be in contact with USCIS or watch for instructions – and be prepared that filings may require attaching a receipt or certification of the $100k payment once that system is set up. This is an evolving procedural aspect.
• Will the Fee Extend Beyond September 2026? By its terms, the proclamation will expire in one year, on September 21, 2026, unless it is extended. Notably, it calls for a review in spring 2026 (30 days after the next H-1B lottery) where agencies will recommend whether to keep it going. This timing is peculiar because the H-1B visas for the next lottery would start October 1, 2026 – just after the fee rule might sunset. It leaves a theoretical scenario where employers could pay $100k per petition in spring/summer 2026, only for the requirement to possibly be lifted by fall 2026. Most observers believe the administration will extend the fee requirement if they still see it as necessary, especially to cover those cap cases. But until that review happens, we don’t know for sure. The uncertainty around extension means employers and workers should stay alert – a lapse or continuation of the fee will significantly impact H-1B planning for 2026 and beyond.
• Potential Legal Challenges: Whenever an immigration rule is this controversial, litigation is a possibility. There are already lawsuits being prepared to challenge the $100k fee. The arguments could range from claiming that the President exceeded his authority by effectively creating a new fee (or penalty) not authorized by Congress, to claims of harm to businesses and the economy. If a lawsuit is filed, a court might issue an injunction to pause the policy – or might uphold it. We simply don’t know yet. No lawsuit has publicly halted the fee as of 9/22/25, so for now the proclamation stands. But this is a wildcard to watch. If you’re an employer considering a big H-1B move, keep in mind that the legal landscape could shift if courts weigh in over the coming months.

Tips for Employers and H-1B Employees

Given what we know and the remaining uncertainties, here are some practical considerations and advice:

• Plan for the Fee if Sponsoring from Overseas: If you intend to file an H-1B petition for someone who is currently abroad, budget an extra $100,000 on top of the usual filing fees. Ensure you have the company’s leadership aware of this cost. Also, stay tuned for USCIS instructions on how to pay and document this fee – you don’t want a petition rejected for lack of proper fee payment.
• Where Possible, Keep H-1B Transfers and Changes In-Country: If your prospective hire is already in the U.S. (for example, on a student visa or even on H-1B with another employer), it’s advantageous to file their H-1B petition as a change of status or transfer without them leaving the country. That way, no $100k fee is due. If they can avoid international travel until things are clearer, that is safest. Essentially, doing H-1B processes completely within the U.S. dodges the proclamation’s reach.
• Exercise Caution with International Travel: If you’re an H-1B visa holder (or an employer of one) and your latest H-1B petition was filed after Sept. 21, 2025, be very cautious about traveling abroad. Even though the official line is that current visa holders shouldn’t be affected, until all agencies consistently implement that, there’s a risk of confusion at consulates or ports of entry. It may be prudent to delay non-essential trips for the time being. Conversely, if you filed before the cutoff and already have a visa, you’re technically free to travel under the existing rules – but keep in mind that policies can change quickly, and new proclamations could always emerge. In short, travel at your own risk in this environment.
• Watch for Exemptions or Policy Updates: The situation is still evolving. The administration might announce specific exemptions (such as for physicians or certain critical industries), or USCIS may publish more detailed FAQs refining who is and isn’t covered. Make sure to follow updates from official sources or via trusted immigration counsel. We could see adjustments that narrow or expand the fee’s scope in the coming weeks.
• Consult Immigration Counsel for Edge Cases: If you have a scenario that isn’t clearly black-or-white (for example, an employee who needs to travel for an emergency but has a post-9/21 petition, or a researcher abroad whose work might be “national interest”), it’s wise to speak with an immigration attorney. They can provide guidance based on the latest developments or even help strategize alternatives (such as different visa categories or timing adjustments) to mitigate the $100k hit.
• Stay Informed: This proclamation dropped with almost no notice, and it likely won’t be the last immigration action of its kind. Subscribe to reliable newsletters or alerts (for example, our firm’s updates) so you get word of any changes. The H-1B landscape in late 2025 is in flux – by staying informed, employers and employees can react quickly and make the best decisions in a shifting policy environment.

Conclusion

The $100,000 H-1B fee proclamation marks a seismic change in employment immigration, and it arrived with the potential to disrupt many lives and business plans. As of September 22, 2025, we have clarity that it squarely targets new H-1B cases for workers abroad, while sparing those already here or already holding visas. However, practical questions – especially about travel and specific case types – remain unanswered. The government’s clarifications over the last few days have resolved the most immediate panic for existing visa holders, but the finer details will continue to develop.

Our recommendation to employers and H-1B employees is to approach the coming months cautiously. If you fall into a gray area, err on the side of caution (e.g., postpone travel or consult an expert). We will continue to monitor and share updates as more information becomes available. In an ever-changing immigration landscape, staying informed and prepared is key.

Reddy Neumann Brown PC located in Houston, Texas, has been serving the business immigration community for over 25 years and is Houston’s largest immigration law firm focused solely on U.S. Employment-based and investor-based immigration. We work with employers, employees and investors helping them navigate the immigration process quickly and cost-effectively.

By : Steven Brown

Steven A. Brown is a Partner at Reddy Neumann Brown PC, where he leads the firm’s Litigation Team, addressing delays and denials of immigration benefits, FOIA requests, and policy and regulatory challenges. Steven is dedicated to delivering practical and effective solutions for clients facing unreasonably delayed or unlawfully withheld immigration benefits, including Employment Authorization Documents (EADs), advance parole, green cards, 221(g) decisions, EB-5 delays, and other immigration-related matters. His litigation efforts were instrumental in Shergill, et al. v. Mayorkas, a landmark case that led to the U.S. government recognizing that under the INA, L-2 and E visa spouses are authorized to work incident to their status, eliminating the need for separate EAD applications. This case has transformed work authorization for thousands of families across the United States.