Introduction: A Fundamental Shift in H-1B Flexibility

In U.S. immigration law, “nunc pro tunc” is a Latin term meaning “now for then.” It refers to a discretionary remedy that allows USCIS to approve a late-filed petition or application retroactively—as if it had been filed on time. In the H-1B context, employers and attorneys have historically relied on nunc pro tunc requests to correct gaps in status, extend an employee’s stay, or fix technical filing errors without forcing the worker to depart the United States. When granted, a nunc pro tunc approval restores continuity of lawful status and employment authorization, preventing the accrual of unlawful presence or the need for consular processing. However, this form of relief is discretionary, not guaranteed, and typically requires showing that the delay in filing was due to circumstances beyond the petitioner’s control and that the employee maintained otherwise lawful conduct throughout the period in question.

In September 2025, President Trump issued a proclamation introducing an unprecedented $100,000 filing fee for certain H-1B visa petitions, signaling one of the most sweeping changes in the program’s modern history. Framed as part of an effort to “protect American workers,” the proclamation requires employers seeking to petition for new H-1B workers to pay this extraordinary fee as a condition of entry into the United States. The measure transforms the H-1B process from a standard employment-based filing into a high-stakes financial commitment, dramatically altering how companies approach sponsorship. The fee not only raises cost barriers but also practically eliminates long-relied-upon procedural options—such as nunc pro tunc requests—to retroactively correct or extend status without triggering the new payment requirement.

The Legal Foundation of Nunc Pro Tunc Relief

To understand why this change is so consequential, it helps to first examine the regulatory basis of nunc pro tunc relief in H-1B practice.

The Regulatory Framework

Under 8 C.F.R. § 214.1(c)(4), USCIS may, “in its discretion and under extraordinary circumstances,” excuse a late filing for an extension of stay if the petitioner demonstrates:

1. The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner;
2. The noncitizen has not otherwise violated their nonimmigrant status;
3. The noncitizen remains a bona fide nonimmigrant; and
4. The noncitizen is not the subject of deportation or removal proceedings.

When those elements are met, USCIS may approve the petition nunc pro tunc to the date the previous status expired, restoring continuity and avoiding gaps in employment authorization.

Why It Mattered

This remedy served as a critical safety net for both employers and employees, particularly when delays stemmed from unavoidable factors—such as corporate reorganizations, government shutdowns, courier delays, or pandemic-related disruptions. Although nunc pro tunc is not a statutory entitlement, it has long been recognized as an equitable tool promoting fairness and administrative efficiency.

A Practical Safety Valve

For decades, nunc pro tunc relief allowed employers to correct small errors—like missing a filing window by a few days—without imposing life-altering consequences on employees. It prevented unnecessary travel, consular delays, and the accrual of unlawful presence. In short, nunc pro tunc operated as the pressure valve of the nonimmigrant visa system, balancing strict procedural requirements with humane discretion.

That balance has now been upended.

How the $100,000 Proclamation Reshaped H-1B Policy

USCIS Guidance and Implementation

In October 2025, USCIS issued interpretive guidance clarifying how the proclamation applies. The agency confirmed that the $100,000 fee does not apply to petitions requesting an amendment, change of status, or extension of stay for beneficiaries who remain lawfully present inside the United States.

However, if USCIS determines that the beneficiary is ineligible for such an amendment or extension—because their prior status has expired or a late filing cannot be excused—the proclamation requires payment of the $100,000 fee.

The End of the Safety Net

This means that the very cases which once relied on nunc pro tunc discretion are now the ones most likely to trigger the new fee. A petition that previously might have been denied for nunc pro tunc relief would still typically be approved for consular processing, allowing the beneficiary to depart the United States and, if otherwise eligible, return with a new visa stamp. Under the new proclamation, however, that same consular processing outcome now triggers the $100,000 fee, which must be paid before the beneficiary can reenter the country. This change transforms what was once a routine procedural fallback into a costly barrier to reentry, effectively penalizing cases that rely on consular approval to correct a prior lapse in status.

From Discretion to Deterrence

Where USCIS once had flexibility to excuse a late filing, the new proclamation effectively removes that discretion. Adjudicators are unlikely to overlook a lapse that would bypass a presidentially mandated payment—especially one justified as protecting U.S. labor markets.

Broader Legal and Policy Implications

The proclamation represents more than a fee hike—it marks a philosophical pivot. Nunc pro tunc relief embodied administrative compassion, recognizing that honest mistakes shouldn’t destroy valid employment relationships. The $100,000 fee transforms that compassion into a cost barrier.
Now, the ability to maintain an H-1B relationship depends less on eligibility and more on financial capacity.

The ripple effects are extensive:

• Reduced employer flexibility. Companies may hesitate to sponsor transfers or correct errors if a procedural lapse could cost six figures.
• Increased international travel risk. More beneficiaries will need to depart for visa stamping, facing months-long wait times or 221(g) delays.
• Strain on U.S. consulates. Demand for appointments will spike as nunc pro tunc avenues close.
• Compliance exposure. Payroll, I-9, and LCA timelines will collide more often with status lapses, increasing the risk of fines or FDNS scrutiny.

In effect, the $100,000 fee turns H-1B sponsorship into a premium-access system. The traditional safety valves of discretion—motions to reopen, nunc pro tunc approvals, informal grace periods—are closing fast.

Practical Guidance for Employers in the Post-Proclamation Era

With nunc pro tunc relief functionally out of reach, employers must adopt a zero-tolerance approach to compliance gaps. The following strategies can help reduce exposure and protect both business operations and employees.

1. Implement Rigorous Status-Tracking Systems

Every H-1B employee’s I-94, petition, and LCA expiration date should be logged in an automated compliance tool. Begin extension processes six months before expiration to account for internal approvals, attorney review, and government delays.

2. Build Redundant Review Procedures

Before filing, ensure at least two reviewers—one from HR or Global Mobility and one from counsel—verify the petition’s accuracy, signatures, and filing fee checks. The era of “overnight corrections” is over.

3. Assess Risk Before Filing Late or Complex Petitions

If an employee has already fallen out of status, evaluate whether curing the violation through travel is more strategic. Each case should balance project urgency, travel logistics, and long-term immigration goals.

4. Strengthen Communication Pipelines

Most nunc pro tunc requests arose from communication failures—someone assumed someone else filed. Centralize communication with shared dashboards, checklists, or case-management portals to ensure no petition slips through the cracks.

5. Stay Informed on Legal Challenges

Multiple advocacy groups and business coalitions are expected to challenge the proclamation’s legality, arguing that the Executive Branch lacks authority to impose new visa fees by proclamation. Stay connected with immigration counsel to monitor litigation outcomes or injunctions that may reinstate traditional filing options.

6. Educate Internal Stakeholders

Train HR, hiring managers, and finance teams on the new financial exposure. The $100,000 fee fundamentally changes the cost calculus of late filings, and internal awareness can prevent accidental triggers.

7. Reinforce Documentation Standards

Maintain complete, contemporaneous records of every H-1B worker’s employment—offer letters, pay records, and project documentation. Strong documentation can help defend against allegations of status violation or justify future discretionary relief.

8. Review Immigration Policies Across the Enterprise

Large employers with multiple subsidiaries should audit intercompany transfer procedures and ensure corporate structure documentation aligns with the new scrutiny level. Small compliance gaps that once could be repaired nunc pro tunc may now trigger the additional fee.

9. Partner Strategically with Immigration Counsel

Under the new landscape, preventive legal strategy matters more than ever. Work with counsel not only for filings but for policy design, workflow audits, and training—reducing reliance on last-minute rescue filings that may now cost six figures.

Conclusion: A New Era of Precision and Accountability

The end of meaningful nunc pro tunc relief under the $100,000 H-1B proclamation marks a pivotal shift in business immigration practice. What was once a flexible, fairness-driven system has become a landscape where precision, timing, and proactive planning are paramount.

Employers can no longer depend on discretionary corrections to fix minor lapses; the stakes are simply too high. Each H-1B filing must now be approached with the same rigor as a financial transaction—because it is one.

At Reddy Neumann Brown PC, we continue to monitor the implementation of this policy and its impact on multinational employers.

By: Emily Neumann

Emily Neumann is Managing Partner at Reddy Neumann Brown PC with over 15 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.