On September 21, 2025, U.S. Citizenship and Immigration Services (USCIS) published an H-1B FAQ providing additional guidance and clarifications on the Presidential Proclamation of September 19, 2025 and its impact on H-1B petitions. On October 21, 2025, USCIS issued additional important updates on the $100,000 H-1B fee. These updates clarify when the fee applies, outline key exemptions, and provide guidance for employers navigating this new requirement.

In addition, there have been significant developments in the two federal lawsuits challenging the proclamation, including a recent court ruling and an expedited appeal schedule.

With the FY 2027 H-1B cap season fast approaching, staying informed is critical. This article summarizes the latest USCIS guidance and legal updates in one comprehensive resource to help employers prepare effectively.

When Does the Fee Apply?

The fee is triggered if:

• The beneficiary must enter the U.S. from abroad and does not yet hold a valid H-1B visa;
• The H-1B petition is filed for consular notification, even if the beneficiary is currently in the U.S.; or
• USCIS denies a request for change of status, extension of status, or amendment and approves the underlying petition only for consular processing.

The fee does not apply if:

• Approved extensions, amendments, or change-of-status petitions generally avoid the fee—unless those requests are denied. The key takeaway is that USCIS has made it clear that the $100,000 fee does not apply to H-1B petitions approved for a change of status or an extension of stay—even if the worker later travels abroad and obtains an H-1B visa at a U.S. consulate.
• Change of employer petitions - As long as the change-of-employer petition is approved with an extension of stay, the $100,000 fee does not apply. However, if the petition filed by the new employer is approved only for consular processing—such as when the beneficiary failed to maintain valid nonimmigrant status and an extension is not possible—or if USCIS denies the extension request and approves the petition solely for consular notification, the employer will be responsible for paying the fee.

National Interest Exceptions

Employers can request a national interest exception (NIE), but these are granted only in rare cases. To qualify, you must prove:

• The foreign national’s presence in the U.S. is in the national interest.
• No U.S. worker is available for the role.
• The foreign national does not pose a threat to the national security or welfare.
• Imposing the fee would significantly undermine U.S. interests.

Employers must submit the national interest exception request to a dedicated DHS email address before filing the H-1B (I-129) petition.

Payment Process

• Pay the fee before filing via the Treasury Department’s pay.gov portal.
• Submit proof of payment or NIE approval with the petition.
• If the petition is denied, USCIS will refund the $100,000 fee (but not other filing fees).

Legal Updates: Lawsuits and Appeal

Two major lawsuits challenged the presidential proclamation imposing the $100,000 H-1B fee: Global Nurse Force v. Trump in California and Chamber of Commerce v. DHS in Washington, D.C. These cases represented a broad coalition of employers, universities, and organizations arguing that the proclamation was unlawful and harmful to U.S. interests. In December 2025, the D.C. District Court ruled in favor of DHS, holding that the President acted within his statutory authority under the Immigration and Nationality Act to impose conditions on entry. As a result, the fee remains in effect, and employers must comply unless future appeals or injunctions change the outcome.

The Chamber of Commerce has filed an appeal with the U.S. Court of Appeals for the D.C. Circuit, and the case has been placed on an expedited schedule. Oral arguments are expected in February 2026, with the Chamber seeking to overturn the lower court’s decision and obtain either a nationwide injunction or a ruling vacating the proclamation entirely. Until the appellate court issues a decision, the $100,000 fee requirement remains enforceable.

Impact on FY 2027 H-1B Cap Season

As noted above, most of change or extension of status petitions, including change of employer petitions with a request for extension of stay will not incur the fee. However:

• If USCIS denies the change or extension of status petition, the employer must pay the fee or secure an NIE for the petition to be approved for consular processing.
• F-1 students must maintain status and avoid international travel while petitions are pending to prevent triggering the fee.

In addition to the $100,000 fee, employers should also prepare for USCIS’s introduction of a wage-weighted lottery system for FY 2027. This change means that petitions offering higher wages may have a better chance of selection. Employers should carefully review their compensation strategies and workforce planning to remain competitive and compliant. Combined with the potential $100,000 fee, these factors make early analysis and strategic planning essential for a successful H-1B filing season.

Key Takeaways for Employers

• Plan ahead: Identify candidates who may require consular processing early in the process.
• Work closely with counsel:
  • Assess each H-1B candidate to determine whether the employer is subject to the new $100,000 fee.
  • Review each candidate’s position, offered salary, and work location(s) to establish the appropriate DOL wage level for the FY 2027 wage-weighted lottery.
• Budget for contingencies: Account for the potential $100,000 fee in your planning and financial forecasts.
• Advise candidates: Emphasize the importance of maintaining valid status and avoiding unnecessary international travel to prevent triggering additional fees or complications.

The $100,000 fee adds complexity and cost to H-1B sponsorship, especially for employers hiring talent from abroad. Proactive planning and careful case management will be essential to navigate these changes successfully.