The White House issued a Proclamation restricting entry into the United States of certain foreign nationals in H-1B status and imposed an $100,000 filing fee on certain H-1B petitions. This rule took effect on September 21, 2025. Since its implementation, there have been many questions surrounding who is subject to this fee and who is exempt. United States Citizenship and Immigration Services (USCIS) has provided some additional clarity.
Who Should Not Be Impacted by the Proclamation:
H-1B Holders Inside the U.S.:
- Individuals with an approved or pending H-1B petition.
- Individuals who are preparing to file an H-1B extension, amendment, or change of employer.
- Individuals who file for and receive approval of an H-1B extension, amendment, change of employer, or change of status, and subsequently travel to secure an H-1B visa.
H-1B Holders Outside the U.S.:
- Individuals with an approved H-1B petition and valid visa.
- Individuals with an approved H-1B petition, and a scheduled visa appointment. Check in with your Clark Hill immigration attorney if you are currently outside the U.S. and awaiting your visa interview.
H-1B Daily Commuters:
- Individuals with an approved H-1B petition.
- Individuals with a pending H-1B petition.
USCIS’s updated guidance specifically states that this Proclamation only applies to those outside the U.S., who do not hold a valid H-1B visa. This verbiage would suggest that those in the U.S. in a valid status (F-1, TN, L-1), applying for a change of status, would not be subject Proclamation. This is a major shift from previous guidance that suggested this fee would apply to all H-1B CAP Lottery cases. This information reflects what we know as of today, and USCIS may continue to refine and update this guidance.
Who is Impacted by the Proclamation:
- Individuals who are outside the U.S., who have applied for, or will be applying for, a first time H-1B after September 21, 2025.
- Individuals requesting an H-1B change of status, amendment, or extension, where USCIS determines the foreign national is ineligible for a change/extension of status (e.g., they are not in a valid non-immigrant status or the foreign national departs the U.S. during adjudication).
Exceptions to the $100,000 Fee:
Exceptions to the $100,000 fee will be granted by the Secretary of Homeland Security in “extraordinarily rare circumstances” according to the USCIS website. Factors that will be considered include that no American is able to fill the H-1B role, the H-1B worker is of national interest, that the foreign national does not pose a threat to security or the welfare of the U.S., and paying the $100,000 fee would significantly undermine the interests of the U.S. All requests, with evidence, for those petitioners seeking an exception must be emailed to H1BExceptions@hq.dhs.gov.
USCIS also released information on how and when to pay the $100,000 fee.
Litigation:
Two federal lawsuits are currently pending that may impact the Proclamation. Clark Hill is closely monitoring for developments and will share new information as it becomes available. Please connect with a Clark Hill Immigration Attorney for any urgent questions.
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