On October 20, 2025, United States Citizenship and Immigration Services (USCIS) posted updated guidance on how the agency will implement the $100,000 fee on new H-1B petitions. On September 19, 2025, a presidential proclamation was issued requiring H-1B petitions for new H-1B beneficiaries filed on or after September 21, 2025 be subject to a $100,000 fee. The guidance from USCIS explains how the fee will be paid, outlines the standards for requesting an exception to the fee, and seems to clarify that the fee does not apply to change of status petitions. The clarification on whether the fee applies to change of status petitions potentially alleviates worries of employers who intend to hire international students who graduated from U.S. universities.
Potential Relief for Employers: F-1 to H-1B Change of Status not Subject to Fee
The guidance offers potential relief to many U.S. companies that intend to hire international students who are graduates of U.S. universities. The guidance suggests that H-1B petitions requesting a change of status are not subject to the $100,000 fee. The guidance states: The Proclamation applies to . . . beneficiaries who are outside the United States and do not have a valid H-1B visa. The Proclamation also applies if a petition . . . requests consular notification, port of entry notification, or pre-flight inspection for an alien in the United States. In addition, if a petition . . . requests a change of status or amendment or extension of stay and USCIS determines that the alien is ineligible for a change of status or an amendment or extension of stay (e.g., is not in a valid nonimmigrant visa status or if the alien departs the United States prior to adjudication of a change of status request), . . . the payment must be paid according to the instructions provided by USCIS. The guidance acknowledges that change of status petitions will not be subject to the fee unless USCIS determines that the beneficiary is not eligible for a change of status. This means that employers may be able to file H-1B petitions for F-1 students who hold valid status inside the United States.
Cap Exempt Institutions Immediately Impacted
This guidance has immediate impact on cap exempt entities like hospitals, universities, and research institutions. These entities hire new university graduates like physicians, professors, and researchers throughout the year and are not subject to the annual H-1B quotas. Cap exempt entities should be able to file new H-1B change of status petitions without being subject to the $100,000 fee.
Uncertainty for H-1B Cap-Subject Season
A fair reading of the USCIS guidance is that the $100,000 fee will not apply to change of status petitions filed during the upcoming cap-subject H-1B filing season. However, previous statements from the White House have emphasized that the $100,000 fee will “first apply in the next upcoming lottery cycle.” Given the White House’s prior statements, it is difficult to predict what will happen. For now, employers should make hiring decisions understanding that the fee may or may not apply to recent graduates seeking a change of status to H-1B during the next H-1B cap-subject filing season. Employers in the recruiting cycle should prepare to file H-1B registrations on behalf of international students working under OPT. Companies can decide on whether to file cap subject H-1B petitions depending on future guidance from the administration.
International Travel for New H-1B Holders Impossible
Even if new workers are granted H-1B change of status petitions, they may be unable to travel internationally without triggering the $100,000 fee. The U.S. Department of State and U.S. Customs and Border Protection (CBP) have both indicated that the fee would apply to new H-1B visa applicants with petitions granted on or after September 21, 2025. This means that international travel may become impossible for H-1B change of status beneficiaries without payment of the $100,000 fee.
Standard for Seeking an Exception to the $100,000 Fee
The guidance provides that exceptions to the $100,000 fee are granted in the “extraordinarily rare circumstance” where an H-1B worker’s presence is in the national interest, that no American worker is available to fill the role, that the alien worker does not pose a threat to the security or welfare of the United States, and that requiring the petitioning employer to make the payment on the alien’s behalf would significantly undermine the interests of the United States. Requests for the exception can be made to [email protected]. Instructions for Payment of the $100,000 H-1B Fee The guidance provides instructions for payment of the $100,000 H-1B fee. Prior to filing an H-1B petition, the employer must submit payment of the fee using the following link: https://www.pay.gov/public/form/start/1772005176. Proof of payment or evidence of an exception to the fee must be provided with the H-1B petition.
Threat of Denial Rather than Rejection
Generally, where improper fees are submitted with a petition to USCIS, the agency rejects the filing, returning the petition to the sender with the accompanying fees. The guidance threatens that H-1B petitions filed without proof of payment or exception will be denied. Employers who file change of status H-1B petitions should be aware of the potential risk that the government may wrongfully deny H-1B petitions for non-payment of the $100,000 fee. Under this circumstance, the employer will lose the H-1B fees already paid. Employers should understand the risk. Employers should consider filing lawsuits to contest wrongful denials due to non-payment of the $100,000 fee.
Related Links:
U.S. Citizenship and Immigration Services, “H-1B Specialty Occupations,” Working in the United States, last reviewed/updated Oct. 20, 2025, available at https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations.
