Employers must pay the $100,000 fee through Pay.gov; exemptions limited to cases of national interest, leaving many visa holders anxious about eligibility.
Story highlights
- The $100,000 fee applies to petitions filed on or after September 21, 2025, where the beneficiary is outside the U.S. and does not hold a valid H-1B visa.
- Employers must make the payment through Pay.gov before submitting petitions, using the form titled “H-1B visa payment to remove restriction.”
- Petitions filed before September 21, as well as extensions or amendments for workers already in the U.S., are exempt from the new fee.
- Rare exemptions may be granted if the H-1B worker’s employment is deemed in the national interest, poses no security risk, and no qualified U.S. worker is available.
- Immigration attorneys call the “national interest” waiver overly broad and ambiguous, warning it leaves room for wide discretion.
- The rule also allows USCIS to deny extensions within the U.S. and require consular approval, adding new uncertainty for current H-1B holders.
Ever since the presidential proclamation imposing a $100,000 fee on new H-1B visas was announced less than a month ago, there has been constant chatter in immigration circles about what the future of employment-based immigration in the United States might look like. The proclamation, which arrived like an unexpected squall, also left many questions unanswered.
Earlier today, the U.S. Citizenship and Immigration Services (USCIS) finally released the long-awaited implementation guidance sought by attorneys, corporations, and visa hopefuls alike. The new update clarifies who must pay the fee, and, importantly, when and how it must be paid. It also outlines the limited circumstances under which an exception may be granted. And although the prerequisites for exemption remain narrow and ambiguous, some see in them a faint glimmer of relief amid an immigration landscape now roiled by escalating fee battles.
Immigration attorney Jihan Merlin, Head of Immigration Strategy at Alma, believes the administration’s approach reflects a strategic recalibration rather than a retreat. When asked whether the proclamation was being diluted over time, Merlin responded, “It’s not unraveling but it’s being narrowed in a way that seems designed to give it more of a chance to survive in court. By limiting it to consular petitions, the administration is aligning the policy more closely with its 212(f) authority over entry restrictions. Whether that strategy holds up in court is the real test ahead.”
Who must pay
According to USCIS, the new fee applies to H-1B petitions filed on or after September 21, 2025, where the beneficiary is outside the United States and does not hold a valid H-1B visa. Petitions requesting consular notification, port-of-entry notification, or pre-flight inspection are also subject to the fee, as are petitions seeking changes of status, amendments, or extensions in cases where USCIS determines that the individual is ineligible to make the change from within the U.S. and therefore issues consular approval.
READ: Trump’s $100,000 H-1B visa fee leads to confusion, chaos, and consequences (October 16, 2025)
Many current H-1B holders view the clause allowing USCIS to determine ineligibility for extensions while remaining in the U.S. as yet another destabilizing factor in their H-1B journey. Jitesh Kumar, an H-1B visa holder, told The American Bazaar, “This leaves me and many others like me in a state of limbo. Since there is no clear guideline on who qualifies, we may be doing everything by the book and still discover that we’re ineligible. That would mean my family and I would be living in constant fear of having to pack our bags and beginning afresh.”
Who is exempted
The clarifications offer a rare moment of clarity in the visa fog — particularly regarding exemptions. According to USCIS, petitions filed before September 21, those for individuals who already hold valid H-1B visas, and approved amendments or extensions for workers within the U.S. will not be subject to the new $100,000 fee.
How and when to pay
Ever since President Trump made the announcement, immigration attorneys have pointed out the lack of clarity regarding who the payment should be made to. USCIS has now clarified that employers must make the payment through Pay.gov, using the form titled “H-1B visa payment to remove restriction.” The payment must be completed before submitting the petition to USCIS.
The much-awaited exceptions
The answer everyone was waiting for concerned the exceptions. The Department of Homeland Security (DHS) may waive the $100,000 fee only in rare cases where it determines that the H-1B worker’s employment serves the national interest and that the worker poses no security risk. An additional condition requires that no qualified U.S. worker be available to fill the position. Experts note that several aspects of the guidance remain ambiguous — particularly the “national interest” waiver, which they say is a broad and undefined criterion that could be subject to wide administrative discretion.
As for whether further easing might follow, Merlin was cautious. “I don’t see the administration easing up further unless the courts step in,” she said. “The recent tweaks look more like a legal defense strategy than a policy reversal. If they tighten it further, it’ll be just enough to stand up in court. We’re telling companies to plan for either outcome.”