In recent weeks, USCIS has issued guidance sharply narrowing a controversial new $100,000 H-1B visa fee, easing much of the confusion it originally caused. Last month’s presidential proclamation imposing the fee “sent shock waves through the immigration community”.
Now, USCIS’s Oct. 20, 2025 update clarifies exactly which petitions trigger the payment and which do not. Below we explain who must pay, who’s exempt, how and when to pay, and even the rare “national interest” waivers that might apply.
Who pays the $100K fee?
USCIS makes clear that petitioning employers must pay the fee for qualifying filings. Companies must pay $100k each time they file a petition to bring a new worker on H-1B status. Under the new rule, the fee only applies to brand-new H-1B petitions filed on or after Sept. 21, 2025 for workers who are abroad without a valid H-1B visa.
In practice this means: if an employer files a consular-processing H-1B petition (to be approved while the beneficiary is outside the U.S.), the $100K must be included. USCIS instructs that the payment be submitted through Pay.gov at the time of filing. In other words, petitioners must pay before filing Form I-129 (and include proof of payment). Any petition filed without the required $100K (or an approved exemption) will be denied.
Who is not required to pay the $100K fee?
USCIS explicitly listed the categories exempt from the fee. These include:
- Current H-1B workers already in the U.S. (for example, extensions, amendments, or employer transfers).
- F-1 (or other nonimmigrant) students in the U.S. who change status to H-1B (such as after being selected in the H-1B lottery).
- Any H-1B petition filed before Sept. 21, 2025.
In short, renewals and changes of status are excluded. For example, USCIS emphasized that visa holders already in H-1B status (even if traveling abroad and returning) “will NOT be charged $100,000 to re-enter”.
As one news report noted, “the fee does not apply when a visa applicant files to move from one type of visa to another, such as from an F-1 visa to H-1B status”. Put simply, almost any petition or visa issuance that originates inside the U.S. (or was filed pre-Sept.21) escapes the fee.
When and how will payment be made?
USCIS confirmed the fee rule went into effect at 12:01am Eastern on Sept. 21, 2025. Any qualifying petition filed at or after that moment must include the $100K. Payment must be made through USCIS’s Pay.gov portal at the time of filing.
Petitioners should print the Pay.gov receipt and staple it to the Form I-129 package. USCIS warns that no petition will be accepted without proof of payment or an approved exception. In short, if your filing triggers the fee, pay before you submit – missing the step means automatic denial.
Are there other exemptions?
The proclamation does allow for a very limited national-interest waiver by the Secretary of Homeland Security. However, USCIS calls these waivers “extraordinarily rare.” To qualify, all the following must be true:
- The H-1B worker’s role is in the national interest.
- No qualified U.S. worker is available for the position.
- The foreign national poses no security risk to the U.S.
- Requiring the employer to pay the fee would “significantly undermine the interests of the United States.”
If a petitioner believes it meets these strict criteria, USCIS directs them to submit a waiver request with supporting evidence to [email protected]. In practice, experts note the bar is so high that very few – if any – petitions will qualify.
What this means for H-1B holders
For most current visa holders, the update is largely good news. USCIS confirms that “current H-1B holders (including those traveling internationally)” owe nothing extra. In other words, if you’re already in H-1B status in the U.S., your upcoming extension or transfer will not trigger the $100K fee. As one analysis put it, this clarification “buys time – but not security” for existing workers.
In the short term, it means the vast majority of H-1B employees and cap-lottery selectees inside the U.S. will proceed as usual, without immediate cost. However, we advise using this breathing room wisely – for example, by pursuing more independent visa or green-card routes (such as an O-1 visa or a self-petitioned EB-1A/NIW green card) for long-term stability.
Conclusion
USCIS’s latest guidance has dramatically narrowed the scope of the $100K fee. As clarified, the fee now falls almost exclusively on new overseas filings; nearly all H-1B work done inside the U.S. is exempt. Employers who must pay should remember to do so via Pay.gov at filing, or seek an exception if (and only if) they genuinely meet the rare waiver criteria.
For now, most H-1B applicants and holders can breathe easier, but the episode underscores the unpredictability of U.S. immigration policy. We will continue to monitor any legal challenges or future changes closely.
The Law Offices of Anne Z. Sedki
We know USCIS’s latest guidance on the $100,000 H-1B fee can be confusing and stressful for employers and visa applicants. At The Law Offices of Anne Z. Sedki, LLC, we are monitoring these changes and can explain their impact. We encourage anyone impacted by this fee ruling—whether you are an employer or an H-1B visa holder—to seek legal counsel promptly. Immediate action can protect your immigration plans.
Our immigration team specializes in employment-based visas and compliance, especially H-1B petitions. We offer tailored strategies and full legal support to businesses and individuals navigating these new rules. Whether you need guidance on fee payments, alternative visa options, or ensuring compliance, we can help. Contact our Garden City office at +1 (516) 276-9057 or +1 (516) 487-3831 to schedule a consultation. We are here to answer your questions and guide you.
