Since the September 2025 Presidential Proclamation imposing a $100,000 fee on certain H-1B petitions took effect, most HR and in-house teams have filed the issue under a single heading: a cost problem for new hires from abroad. That framing is understandable. It is also incomplete, and in a way that could prove expensive.

What the October 2025 USCIS guidance clarified, and what very few employers have fully internalized, is that the fee does not only apply when an employer sponsors a worker who is physically outside the United States. It can also apply to an H-1B worker who has been sitting at a desk inside your office for years. The trigger is not location. The trigger is eligibility. And eligibility turns on whether the beneficiary has maintained valid H-1B status throughout the period covered by the last approved petition. When the answer is no, a routine extension can transform into a six-figure problem for an employee the company considered settled.

How a Domestic Employee Ends Up Subject to a Fee Designed for Workers Abroad

Under current USCIS guidance, the $100,000 fee applies in three circumstances relevant to most corporate programs. It applies to petitions filed for beneficiaries outside the United States who do not already hold a valid H-1B visa. It applies to petitions that expressly request consular notification, port of entry notification, or pre-flight inspection. And critically, it applies to petitions that request an extension, amendment, or change of status where USCIS determines the beneficiary is not eligible for the requested action and instead approves the petition for consular notification.

That third category is the one most commonly overlooked in the compliance reviews we have seen over the past several months.

An H-1B worker can only receive an extension of stay if the worker is currently maintaining valid H-1B status. If USCIS determines that the worker has failed to maintain status at any point during the period covered by the previous petition, the extension is not available. The petition does not simply disappear. In many cases, USCIS will approve the underlying H-1B classification but will do so only for consular processing, which means the worker must leave the United States and apply for a new visa stamp abroad before returning. Before approving the petition for consular processing, the $100,000 fee attaches.

The result is that a worker who has been physically and continuously present in the United States for years, who has never left, who has been paid on the company’s payroll, and whose family and life are here, can become subject to the same fee that created an entry restriction. The maintenance-of-status violation is the bridge. And the most common reason a maintenance-of-status violation exists is that the employer did not file something it was required to file, or did not file it in time, or filed something that no longer accurately described the job.

The Worksite Example That Every Employer Should Be Running Internally

Consider a software engineer who was approved for H-1B status in 2023 to work from the company’s Houston office. In 2024, as part of a broader hybrid-work rollout, she relocated to San Antonio and began working remotely from her home four days a week, coming into the Houston office only occasionally. The move was personal. No one filed an amended H-1B petition because no one at the company thought of it as a material change. The offer letter was updated in the HRIS system. Her manager approved the arrangement. Payroll continued without interruption.

The problem is that Houston and San Antonio are two different metropolitan statistical areas. An LCA certified for the Houston MSA does not cover work performed in the San Antonio MSA. A worksite change of that kind is not a technicality. It is a material change that requires a new LCA, posting notices at the new worksite, and an amended H-1B petition filed before the employee begins working in the new location. The Matter of Simeio Solutions framework and the guidance that has followed make this clear, and the rules have not loosened.

Two years later, the company files her extension. USCIS reviews the file, compares the LCA on record against the employee’s actual work location during the relevant period, and concludes that she was not maintaining status because she was working outside the area of intended employment without a corresponding amendment. The extension is denied. The petition converts to consular processing. The $100,000 fee now attaches to an employee who has been continuously on the company’s payroll for three years and who has never worked for any other employer.

This is the predictable consequence of treating remote work authorizations as a function of company policy rather than as an immigration compliance event. In a post-pandemic workforce, it is also one of the most common compliance gaps we see.

The Site Visit Scenario Most Employers Are Not Watching For

The second scenario is less familiar to most HR teams and, for that reason, potentially more dangerous.

A data analyst’s H-1B was approved three years ago at a Level II wage. The petition described her duties as standard reporting, dashboard maintenance, and routine data extraction from enterprise systems. The role was accurately described at the time it was filed. Over the following eighteen months, the team’s scope expanded substantially. Her day-to-day work evolved into designing and deploying machine learning models, supervising two junior analysts, and owning the analytics roadmap for a business unit. Her title never changed. Her compensation did not change.

Then USCIS’s Fraud Detection and National Security directorate, commonly known as FDNS, conducts an unannounced site visit. The officer interviews the beneficiary and her manager, reviews organizational materials, and documents in the site visit report that the actual duties being performed are materially more complex than those described in the petition. The report notes that the responsibilities, level of independent judgment, and supervisory component would ordinarily correspond to a higher wage level.

USCIS reviews the record and concludes that the beneficiary has not been working in the position as petitioned and has not been paid the wage that the actual role required. That is a dual violation: a departure from the duties described in the petition, and a failure to pay the wage that the correct LCA would have required. Both go to maintenance of status. The petition is revoked. The employee would normally regain status by exiting the U.S. and obtaining a new visa with a consular processing approval. But now, the $100,000 fee attaches to the consular filing.

The Quieter Wage Problem

There is a third scenario that does not require an FDNS visit at all, and it is arguably the most common. The LCA on the last approved petition requires a wage of $135,000. Payroll has been running at $128,000 because a merit cycle was skipped, a bonus program was restructured in a way that moved guaranteed compensation into discretionary components, or a promotion adjustment was delayed pending a reorganization. The employee is not being paid the wage indicated in the petition. That is an LCA violation on its own terms, independent of any duty analysis. It is also a maintenance-of-status problem. At the extension stage, it can produce the same result as the worksite and duties examples.

What the Fee Structure Actually Tells Employers

The unifying point across these scenarios is that none of them are exotic fact patterns. Remote work relocations, duty evolution, and wage drift are the normal motion of a functioning company. They are common issues that happen between the filing of one H-1B petition and the filing of the next. Under the current framework, they are also the precise conditions that can convert a routine extension into a six-figure surprise attached to a worker who has never left the country.

Whether one views the Proclamation as a legitimate exercise of executive authority or as an overreach pending further judicial review, the implementation guidance is what governs at the petition stage today. In any petition requesting an extension of stay, change of status, or amendment of stay, the employer must demonstrate that the beneficiary is eligible for the requested extension, amendment, or change of status. If that demonstration fails, the fee attaches regardless of how long the worker has been in the United States.

The $100,000 fee is the penalty that attaches when existing compliance obligations were not met.

What HR and In-House Teams Should Be Doing Now

There are several concrete steps every employer sponsoring H-1B workers should be taking in the current environment.

First, run a portfolio review of every H-1B employee whose worksite, duties, reporting line, or compensation structure has changed since the last approved petition. The review should not be limited to formal transfers or promotions. It should capture every remote-work authorization, every team reorganization, every change in reporting line, and every compensation adjustment that falls outside the parameters contemplated by the existing LCA.

Second, treat remote and hybrid work arrangements as worksite changes until proven otherwise. The relevant question is not where the employee’s badge was last swiped or where their HR record places them. It is which metropolitan statistical area covers their actual work location, and whether the LCA on file covers that MSA. Where it does not, an amended petition is not optional.

Third, audit current duties against the job description contained in the last approved petition. This is the step most companies skip, because it requires going back into the petition file rather than simply reviewing internal job descriptions. Scope creep is invisible on paper until an FDNS officer is sitting across from your employee. A proactive review is significantly cheaper than a reactive one.

Fourth, reconcile current payroll against the wage on the last approved LCA. Include the effect of any bonus restructuring, equity vesting changes, or compensation adjustments that may have altered the base wage. The required wage must be paid as a matter of the LCA, not as a matter of what the team intended.

Fifth, where an amendment should have been filed and was not, engage counsel immediately. There are mechanisms for addressing prior noncompliance, but their availability and effectiveness depend on acting before USCIS identifies the issue at the extension stage. Waiting until the extension is denied forecloses most of them.

Conclusion

The employers who will be hit with the $100,000 fee most often over the next twelve months are not just the ones hiring new workers from abroad. They are ones who assumed their long-tenured H-1B workforce was safely behind them and who are now learning, petition by petition, that maintenance-of-status obligations they treated as routine have quietly become the condition precedent to avoiding a six-figure liability.

The question for every HR leader and in-house counsel responsible for an H-1B program of any size is no longer whether the Proclamation affects the company. It is whether the company can demonstrate, case by case, that its current workforce is eligible for the extensions and amendments it will need to file. That demonstration requires a current, accurate, and well-documented record of every worksite, every set of duties, and every wage figure on which the program depends.

In the current adjudication environment, that is not a recordkeeping exercise. It is a risk management function. And for many employers, it is overdue.

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 to navigate the immigration process quickly and cost-effectively.

By: Emily Neumann

Emily Neumann is Managing Partner at Reddy Neumann Brown PC with over 20 years of experience practicing US immigration law providing services to U.S. businesses and multinational corporations. Emily has helped transform the firm from a solo practice to Houston’s largest immigration law firm focused exclusively on U.S. employment-based immigration.  She received her Bachelor’s degree in Biology from Central Michigan University and her Juris Doctorate degree from the University of Houston Law Center. Emily has been quoted in Bloomberg Law, U.S. News & World Report, Inside Higher Ed, and The Times of India on various hot topics in immigration. She is a member of the American Immigration Lawyers Association and Society for Human Resource Management.