Foreign nationals approaching the end of their six-year H-1B limit have traditionally relied on two primary pathways to remain in the United States: recapturing time spent abroad to extend H-1B status, or obtaining eligibility for extensions beyond the sixth year under AC21 once the PERM labor certification or I-140 petition has been pending long enough. However, the landscape has changed significantly with the September 2025 Presidential Proclamation imposing a $100,000 fee on most consular-processed H-1B petitions. If this proclamation remains in effect, it will have a major impact on strategy and timing for employees nearing their H-1B max-out date.

Relocating Abroad May No Longer Be a Viable Strategy
Historically, many individuals nearing the six-year limit could relocate abroad, continue working remotely for the U.S. employer, and return to H-1B status once AC21 eligibility was reached. This approach is now severely limited. Because a beneficiary outside the United States must re-enter via a consular processing H-1B petition, such a filing would trigger the $100,000 fee under the proclamation. This makes the “wait abroad while the PERM reaches the one-year mark / I-140 petition is approved” strategy prohibitively expensive and often unrealistic for most employers. As a result, beneficiaries can no longer rely on long-term relocation abroad as a safe fallback option.

Short-Term International Travel and Recapture Are Now More Critical Than Ever
With long-term remote work abroad no longer practical, beneficiaries nearing their 6-year limit must maximize recapture time while still maintaining H-1B status in the United States. Beneficiaries may need to undertake short international trips, sometimes multiple ones, before the expiration of their current I-797 approval. Any full days spent outside the United States before that expiration date can be recaptured and used to extend H-1B validity.

Once the beneficiary has accumulated enough recapture days to reach either the 365th day of a pending PERM or an approved I-140, the employer can file an H-1B extension of status from within the United States. An extension of status (as opposed to consular processing) avoids the $100,000 fee entirely, provided that the beneficiary is physically present in the U.S. and in valid H-1B status at the time of filing. With this shift, meticulous travel planning has become far more important than in previous years.

Changing Status within the U.S. May Be Necessary When Travel Is Not Possible
For some beneficiaries, travel abroad may not be feasible, whether due to family circumstances, employer needs, medical limitations, or concerns about visa stamping delays. In such cases, the primary remaining option is to change to another nonimmigrant status from within the United States until AC21 eligibility is reached. This may involve changing to H-4 status (when available), F-1 student status, or even B-2 visitor status. These categories allow the individual to maintain lawful presence without leaving the country and without triggering the proclamation’s fee, since a later filing to return to H-1B status can be processed as a domestic change of status.

The significant drawback of this approach is that most alternative statuses do not provide employment authorization, except in cases where H-4 EAD eligibility applies. Beneficiaries may need to stop working during this period, and employers must be willing to hold the position open until a change back to H-1B status can be filed once AC21 eligibility becomes available.

Early Planning Is Essential
The broader effect of the proclamation is that both beneficiaries and employers must plan earlier and more strategically—often 2 years or more before reaching the anticipated H-1B max-out date. Strategies that were previously flexible, such as relocating abroad temporarily, now carry significant financial consequences. The most practical and cost-effective approaches will generally involve maximizing recapture time through carefully timed international travel or maintaining lawful status through a temporary change of status until the beneficiary becomes AC21-eligible.

If you or your company are nearing the H-1B six-year limit and would like guidance in navigating these new constraints, our team can assist with reviewing timelines, evaluating travel and recapture options, and assessing whether a change of status may be appropriate to preserve the ability to later extend H-1B status without incurring the $100,000 fee.

By: Rebecca Chen

Rebecca Chen is a Partner at Reddy Neumann Brown P.C. Her representation includes advising clients throughout the nonimmigrant and immigrant visa application process, from initial filing, responding to various requests for evidence, and processing at overseas consulates. Her years of experience in the immigration field have made her a knowledgeable resource for complex business immigration matters.