In the days that followed, the U.S. Citizenship & Immigration Services (USCIS), Customs & Border Protection (CBP) and the U.S. Department of State (DOS) all issued clarifying guidance regarding the Trump Proclamation. All three agencies confirmed that the $100K rule did not apply to foreign nationals outside the United States who are applying for H-1B visa stamps based on H-1B Petitions filed before September 21, 2025. They also confirmed that the rule did not apply to H-1B extensions of status for foreign nationals in the United States who were already in H-1B status. However, many unanswered questions remained regarding the applicability of the $100K Fee.
Today, USCIS provided more extensive guidance and clarification regarding the applicability of the rule. This article provides additional UPDATES to our September 20th and September 22nd advisories regarding the Trump Presidential Proclamation requiring $100K for H-1B petitions.
The $100K rule DOES NOT apply to:
- H-1B Change of Status and Extension of Status. No fee for petitions filed by employers seeking a change of status for a foreign national already in the United States in valid nonimmigrant status.
- H-1B Amendment. No fee for petitions filed by employers seeking an amendment or change to currently approved H-1B status on behalf of a foreign national employee.
- H-1B Change of Employer. No Fee for petitions filed by an employer on behalf of a foreign national employee in the United States requesting the transfer of an existing/ approved H-1B status to the new employer.
- H-1B Visa Stamping for certain cases. No fee for visa applications by a foreign national who is the beneficiary of an approved I-129 Petitions referenced above, or filed before September 21, 2025, whose petition for an extension/change/transfer is approved by USCIS and who then subsequently departs the United States to apply for their H-1B visa stamp at the U.S. Embassy in their home country.
The $100K fee DOES apply to:
- New H-1B Petitions for people outside the United States. $100K Fee is required for H-1B Petitions filed by an employer on or after September 21, 2025, on behalf of a foreign national who is currently outside the United States and who do not hold a valid H-1B visa.
- H-1B Petitions requiring Consular Notification. $100K Fee is required for petitions filed by an employer on behalf of a foreign national, that requires Consular Notification (rather than an extension or change of status, or change/transfer of employer, including petitions where the change/extension of status request was denied by USCIS).
USCIS also confirmed that the $100K Fee must be paid through pay.gov in advance of filing the I-129 Petition.
National Interest Exception:
For H-1B Consular Notification petitions which require proof of payment of the $100K fee, an employer can request an exception to the $100K fee requirement. According to USCIS, the exception will be granted in rare circumstances where the foreign national worker’s presence in the United States is in the national interest, there are no U.S. workers available to fill the role, and the foreign national worker does not pose a threat to the security or welfare of the United States, and requiring the employer to pay the $100K fee would significantly undermine the interests of the United States.
Takeaways:
Neither H-1B Cap Subject nor H-1B Cap Exempt Petitions require the $100K fee if they are filed on behalf of foreign nationals who are already in the United States in a valid nonimmigrant status and the petition requests an extension or change of nonimmigrant status or change of employer, and that request for extension/change is approved by USCIS.
Cap-exempt employers (i.e., school districts, hospitals, universities, etc.) needing to file H-1B Petitions requesting a change of status from F-1 OPT or J-1 exchange visitor for foreign nationals in the United States, can now do so without having to pay the $100K fee.
Cap-subject employers with foreign national employees currently working on F-1 OPT / STEM OPT who were planning to file H-1B petitions for those selected in the H-1B Cap Registration Lottery in March 2026, can file petitions for selected foreign nationals requesting a change of nonimmigrant status, without having to pay the $100K fee so long as the foreign remains in the United States, in valid nonimmigrant status, through final adjudication of the H-1B petition.
In contrast, employers contemplating filing H-1B Petitions for foreign nationals currently outside the United States, who will only be able to enter the United States with an H-1B visa after a new H-1B petition is approved, may reconsider whether the foreign national employee is worth the $100K fee or whether the position and employee fall within the National Interest Exception.
For more information on the H-1B program, the $100K fee or other immigration matters, please contact Kolko & Casey, P.C.
About the Author
Jennifer Casey is Managing Partner at Kolko & Casey, P.C. Jennifer specializes in employment based and family based immigration matters.
