On September 19, 2025, the Trump Administration issued a presidential proclamation introducing a “proclamation fee” of $100,000 for certain H 1B petitions. U.S. Citizenship and Immigration Services (USCIS) guidance published on October 20, 2025 seeking to clarify when the fee applies and who is exempt.
When Does the Fee Apply?
- New H 1B petitions filed on or after September 21, 2025 for beneficiaries outside the United States without a valid H 1B visa.
- Petitions requesting consular processing, port-of-entry notification, or preflight inspection.
- Change of status, amendment, or extension petitions filed on or after September 21, 2025 if USCIS determines the beneficiary is ineligible for in-country adjudication, such as:
- The individual is not in valid nonimmigrant status at the time of filing.
- The individual departs the United States before USCIS decides the change-of-status request.
- In these situations, the $100,000 payment must be made following USCIS instructions at the time of the petition filing.
Who Is Exempt?
- Current H 1B holders in the United States if the beneficiary already has valid H 1B status and remains in the country.
- In-country petitions (provided the beneficiary maintains lawful status and does not depart before USCIS adjudicates the request) including:
- Extensions of stay
- Amendments
- Changes of status (COS)
- Subsequent visa stamping after an approved in-country petition. Traveling abroad for visa stamping based on an approved extension or COS does not trigger the fee.
- Petitions filed before September 21, 2025.
- USCIS limits the national interest exception to “extraordinarily rare” cases meeting four strict criteria: the noncitizen’s presence is in the national interest, no U.S. worker is available, the individual poses no security or welfare risk, and requiring the fee would significantly undermine U.S. interests. Employers must request the exception via a dedicated Department of Homeland Security email before filing and include supporting evidence with the petition. Failure to do so will result in denial.
Litigation Watch
Two federal lawsuits, Global Nurse Force v. Trump and Chamber of Commerce of the United States v. DHS, are challenging the H 1B proclamation and its $100,000 fee requirement, arguing that the President lacks authority to impose new program conditions and that the fee is not an entry restriction. Courts will review motions to block enforcement or invalidate the rule in the coming weeks, and outcomes could affect implementation and employer obligations.
Recommended Employer Actions
- Preserve In-Country Eligibility. File early, maintain lawful status, audit I 94 records, and avoid international travel during processing.
- Develop a Fee Policy. Create a neutral company policy clarifying the criteria and circumstances when the company would pay the fee for any employee. Document decisions clearly and consistently to mitigate discrimination claims.
- Plan for Cap Season. Plan now for H-1B cap season, including prioritizing in-country COS petitions while budgeting for potential fee exposure.
- Monitor Developments. Track USCIS updates and litigation outcomes and provide guidance to managers and foreign national employees.
Important Note: Because this USCIS guidance deviates from earlier White House and Department of State messaging, our Immigration Team is actively monitoring developments and will provide updates as soon as they occur. In the meantime, please reach out to our Immigration Team for tailored guidance specific to your situation.
If you have any questions, or would like additional information, please contact one of the attorneys on our Immigration team.
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