31 October 2025
In the wake of President Trump’s September 19, 2025 Proclamation imposing a $100,000 filing fee on certain new H-1B petitions, USCIS has issued formal guidance clarifying how and when this steep fee will apply. While the update answers some of the most pressing employer concerns, key uncertainties remain—particularly around the payment process and narrow exception criteria.
Here’s a full breakdown of what the guidance says, and what employers should do next.
Summary: Who Must Pay the $100,000 H-1B Fee?
According to the new USCIS guidance issued this week, the $100,000 fee applies only to a limited subset of H-1B petitions, specifically:
✅ Applies To:
- New H-1B petitions filed on or after September 21, 2025
- For foreign nationals outside the U.S. who do not currently hold valid H-1B status
❌ Does Not Apply To:
- Extensions of current H-1B status
- Amendments or change-of-employer petitions
- Change of status filings for individuals already in the U.S. on a different visa
How Must the Fee Be Paid?
- Employers must use the official pay.gov system to submit the $100,000 fee.
- Payment must be completed at the time of petition filing.
- A receipt of payment must be included with the petition or it will be rejected as improperly filed.
Exception: The National Interest Waiver (NIE)
USCIS confirms that the $100,000 fee may be waived—but only under extraordinary circumstances where:
- DHS determines that employing the individual is in the national interest, and
- There is no risk to U.S. security or welfare.
These waivers will likely be extremely rare. The guidance does not define a clear process for requesting the NIE, and adjudication will be entirely discretionary.
Legal Challenges Already Filed
Two federal lawsuits have already been filed challenging the legality of the Proclamation. Plaintiffs argue that:
- The President overstepped his authority under the Immigration and Nationality Act (INA)
- The fee constitutes an unlawful tax, not a user fee
- It places an undue burden on U.S. employers, particularly small businesses and startups
As of now, no injunction has been granted, and the rule remains in effect.
VKM Law Group’s Practical Guidance for Employers
If you’re preparing to file H-1B petitions this fall or winter, here’s what you should do:
✅ 1. Determine Petition Type
- Is it a new petition for a worker outside the U.S.? If so, the fee likely applies.
- If it’s a change of status, extension, or amendment for someone already in the U.S., the fee does not apply.
- Prepare for the Payment Process
- Set up your pay.gov account in advance
- Include proof of payment in the filing package to avoid rejection
- Evaluate National Interest Exception Possibility
- Consider whether the beneficiary’s role clearly serves a critical U.S. interest (e.g., defense, cybersecurity, public health)
- Prepare evidence and legal arguments for submission alongside the petition
- Track Legal Developments
- Monitor ongoing litigation that may pause or overturn the $100,000 fee
- Subscribe to our newsletter for real-time updates and guidance
Our Take: Policy-Driven, Legally Questionable, and Operationally Challenging
This fee is not only historic in scale, but also potentially unconstitutional, and logistically burdensome for U.S. businesses—especially those in tech, R&D, and education sectors that rely on global talent.
It’s clear the Biden-era reforms of the H-1B program are being dramatically reversed under the current administration. As these changes take hold, employers must move quickly to adjust their hiring timelines, legal budgets, and compliance practices.
Need Help Filing H-1B Petitions Under the New Rule?
At VKM Law Group, we represent employers and individuals across New Jersey and nationwide. Our experienced immigration attorneys can help:
- Analyze whether the fee applies to your petition
- Prepare strong National Interest Exception requests
- Ensure compliance with the new pay.gov requirements
- Challenge denials or procedural errors
Contact VKM Law Group today to schedule a consultation with our immigration team.
We help businesses navigate policy shifts so you can focus on growth, not red tape.