Client Alert: Update on the $100,000 H-1B Fee

On Friday, September 19, 2025, the Trump administration issued a Presidential Proclamation requiring companies to pay a $100,000 fee on the entry of H-1B workers. The announcement created a global panic. Subsequent announcements seem to be creating more confusion about what the policy is and how it will be implemented. Below are our recommendations for employers and H-1B workers:

1. The proclamation does not apply to those who currently hold H-1B status.
2. The proclamation does not apply to pending H-1B petitions.
3. The proclamation does not apply to H-1B beneficiaries with valid H-1B visas attempting to reenter the United States after international travel.

A White House FAQ and CBP memo stated that the fee did not apply to H-1B renewals, extensions of stay, or change of employer petitions. Based on a reading of the guidance, it appears this proclamation will apply to change of status petitions filed. For instance, it may apply to H-1B petitions filed for F-1 and other temporary status holders to change status to H-1B status without leaving the United States. The questions will likely be settled in the coming days, either through policy clarification or litigation. A change of status is not an admission and therefore cannot be considered an entry to the United States. For companies and H-1B holders who are currently working in the United States:

1. This policy should not change their ability to continue working and should not impede the filing of extensions of stay.
2. H-1B beneficiaries should avoid international travel. The proclamation appears to allows those holding H-1B status prior to September 21, 2025 and a valid H-1B visas to travel internationally. But the policy is not clear as to those who do not already have a valid H-1B visa stamp.
3. Companies may want to delay filing of change of status H-1B petitions (i.e., F-1 OPT change of status to H-1B) until there is clarification regarding the fee’s applicability.

Background On Friday, September 19, 2025, the Trump administration issued a Presidential Proclamation requiring companies to pay a $100,000 fee on the entry of H-1B workers. The order is effective for a 1-year period starting September 21, 2025. There was immediate confusion regarding the scope of the H-1B ban and there still isn’t precise guidance on how the proclamation will be lawfully implemented. On Saturday September 21, 2025, White House Press Secretary Karoline Leavitt issued a press statement stating: “To be clear: 1.) This is NOT an annual fee. It’s a one-time fee that applies only to the petition. 2.) Those who already hold H-1B visas and are currently outside of the country right now will NOT be charged $100,000 to re-enter. H-1B visa holders can leave and re-enter the country to the same extent as they normally would; whatever ability they have to do that is not impacted by yesterday’s proclamation. 3.) This applies only to new visas, not renewals, and not current visa holders. It will first apply in the next upcoming lottery cycle.” Legal guidance from the White House Press Secretary may not have any binding force of law. Shortly after, CBP, the agency responsible for admission of foreign nationals traveling internationally to the United States, issued statement posted only on X – not any official CBP website: “This Proclamation only applies prospectively to petitions that have not yet been filed. It is not retroactive and will not be assessed against petitions filed before September 21, 2025 at 12:01 a.m. ET. The fee requirement also does not apply to H-1B renewals, extensions of stay, or change of employer petitions. Current H-1B visa holders may continue to depart the United States and re-enter under their existing visas without payment of the $100,000 fee. Beneficiaries of approved H-1B petitions filed before September 21, 2025 at 12:01 a.m. ET are not subject to this requirement.“ The CBP statement is unclear. While it says that current H-1B beneficiaries are not subject to the fee, it also does not state whether H-1B beneficiaries who do not hold H-1B visas are subject to the fee. USCIS subsequently issued a statement adding more uncertainty to the policy: “This proclamation only applies prospectively to petitions that have not yet been filed. The proclamation does not apply to aliens who: are the beneficiaries of petitions that were filed prior to the effective date of the proclamation, are the beneficiaries of currently approved petitions, or are in possession of validly issued H-1B non-immigrant visas. All officers of United States Citizenship and Immigration Services shall ensure that their decisions are consistent with this guidance. The proclamation does not impact the ability of any current visa holder to travel to or from the United States.” Based on the USCIS memo, the $100,000 fee may apply to all H-1B petitions filed after September 21, 2025. There may be conflicting guidance whether this includes application for extension of stay or change of employers, but the USCIS memo can be read to mean all H-1B change of status petitions will be subject to the $100,000. On September 21, 2025, the White House issued an FAQ stating: “This Proclamation:

• Requires a $100,000 payment to accompany any new H-1B visa petitions submitted after 12:01 a.m. eastern daylight time on September 21, 2025. This includes the 2026 lottery, and any other H-1B petitions submitted after 12:01 a.m. eastern daylight time on September 21, 2025.
• Authorizes the Department of Homeland Security and the Department of State to coordinate to take all necessary and appropriate action to implement this Proclamation.
• U.S. Citizenship and Immigration Services has so far taken such action by issuing guidance regarding the Proclamation, available here.
• U.S. Customs and Border Protection has also issued guidance, available here.
• The Department of State has posted guidance to all consular offices, consistent with the guidance from U.S. Citizenship and Immigration Services and U.S. Customs and Border Protection guidance.

This Proclamation does not:

• Apply to any previously issued H-1B visas, or any petitions submitted prior to 12:01 a.m. eastern daylight time on September 21, 2025.
• Does not change any payments or fees required to be submitted in connection with any H-1B renewals. The fee is a one-time fee on submission of a new H-1B petition.
• Does not prevent any holder of a current H-1B visa from traveling in and out of the United States.“

Based on the combined guidance from CBP, USCIS, and the White House, it appears that change of status H-1B petitions are subject to the $100,000 fee. This would violate immigration laws. First, a change of status is not an admission, and therefore not an entry to the United States under the Presidential Proclamation. Second, the fee applied to H-1B petitions likely H-1B statutes and definitely constitutes a violation of the regulatory rulemaking processes set out under the Administrative Procedures Act.