Overview: The Presidential Proclamation and the $100,000 Fee
On September 19, 2025, President Donald J. Trump signed a Presidential Proclamation titled Restriction on Entry of Certain Nonimmigrant Workers. Effective at 12:01 a.m. Eastern Daylight Time on September 21, 2025, the Proclamation requires a $100,000 supplemental payment to accompany new H-1B petitions filed on or after that date. The Proclamation is currently in effect for twelve months and is set to expire on September 21, 2026, unless extended by the administration.
The stated purpose of the Proclamation is to reform the H-1B program, which the administration characterized as being "deliberately exploited to replace, rather than supplement, American workers with lower-paid, lower-skilled labor." The $100,000 fee is intended to deter abusive filings and ensure that H-1B visas are used exclusively to bring in the best and highest-skilled foreign nationals. Payment must be made through pay.gov prior to filing Form I-129 with USCIS. A petition filed without proof of payment — or without a granted exception — will be denied.
Who Must Pay the $100,000 Fee
The $100,000 fee applies to new H-1B petitions filed on or after September 21, 2025, in the following situations:
- The beneficiary is outside the United States and does not hold a valid, unexpired H-1B visa; or
- The beneficiary is in the United States but the H-1B petition requests consular notification, port of entry notification, or pre-flight inspection, meaning the beneficiary intends to obtain visa stamp through a U.S. consulate abroad.
Critical Warning: Valid H-1B Visa Holders Are Not Always Exempt
One of the most misunderstood aspects of this Proclamation involves H-1B workers who already hold a valid, unexpired H-1B visa stamp. Many employers and candidates mistakenly believe that because the beneficiary has a valid H-1B visa, any new petition filed on their behalf is automatically exempt from the $100,000 fee. This assumption can be dangerously wrong.
Here is the critical scenario every employer and H-1B candidate must understand: If a new H-1B petition is filed while the beneficiary is physically outside the United States — even if that person holds a valid, unexpired H-1B visa — the $100,000 fee may still be required. The Proclamation's exemption for "previously issued and currently valid H-1B visas" was designed to allow existing H-1B visa holders to continue traveling in and out of the United States on their existing visa without paying the fee. It was not designed to exempt new H-1B petitions filed for beneficiaries who happen to be abroad at the time of filing.
This is especially relevant for:
- H-1B workers who have transferred to a new employer and are traveling or residing outside the U.S. at the time the new petition is filed;
- H-1B workers whose employer files an amended or new petition but who depart the United States before the petition is adjudicated — in which case USCIS has confirmed the Proclamation will apply;
- Beneficiaries abroad seeking consular processing of a new H-1B petition from a U.S. consulate.
If there is any chance the beneficiary may be outside the United States at the time of filing or during adjudication, employers must budget for the $100,000 fee or risk denial of the petition. Do not assume that a valid visa stamp in the passport is sufficient protection.
Implementation and Payment Process
USCIS issued formal guidance on October 20, 2025, clarifying the scope of the Proclamation after initial confusion in the days following the September 19 signing. Payment of the $100,000 fee is made through the federal government's pay.gov portal before the Form I-129 H-1B petition is filed. At the time of filing, the petitioner must include either (1) a copy of the pay.gov payment confirmation, or (2) written evidence of a granted exception from the Secretary of Homeland Security. USCIS will not issue a Request for Evidence (RFE) if proof of payment is missing — the petition will simply be denied outright.
A National Interest Exception exists but is narrowly defined. To obtain it, the employer must demonstrate that the H-1B beneficiary's role serves a compelling national interest. This exception is not routinely granted, and employers should not assume it will be available for most standard corporate, tech, or professional services positions.
The Proclamation has already been challenged in at least two federal lawsuits — including Global Nurse Force et al. v. Trump filed in the Northern District of California, and Chamber of Commerce of the United States v. U.S. Department of Homeland Security filed in the District of Columbia. Courts may ultimately block or limit the Proclamation's enforcement. However, until a court order is issued, employers must comply with the $100,000 fee requirement or face certain denial.
What the Fee Does NOT Apply To
USCIS has confirmed that the $100,000 fee does not apply to:
- H-1B petitions filed before September 21, 2025;
- H-1B renewals, extensions, or amendments for beneficiaries who are currently in the United States and maintaining valid H-1B status;
- Beneficiaries who are in the U.S. and filing for a change of status to H-1B — provided they remain in the U.S. and maintain valid status through adjudication;
- Beneficiaries with previously issued and currently valid H-1B visas who are re-entering the United States on that existing visa;
- H-1B petitions requesting a change of employer (portability transfer) where the beneficiary remains inside the United States in valid status throughout adjudication.
F-1 Students on OPT and STEM OPT: The Fee Does Not Apply to You
One of the most important clarifications issued by USCIS involves F-1 students transitioning from Optional Practical Training (OPT) or STEM OPT to H-1B status. The $100,000 fee does not apply to F-1 students who are selected in the H-1B lottery and whose employer files an H-1B petition for a change of status while the student remains in the United States.
USCIS has explicitly confirmed: "F-1 OPT students eligible for change of status to H-1B in calendar year 2026 (fiscal year 2027) are not affected by the Proclamation." This is because the Proclamation's fee requirement targets beneficiaries seeking entry into the United States from outside the country. A change-of-status petition filed for a student who is already in the U.S. on a valid F-1 visa — and who remains in the U.S. through approval — does not trigger the fee.
However, this protection comes with a serious caveat: if the F-1 student departs the United States after the H-1B petition is filed but before it is adjudicated, the Proclamation may apply. In that case, USCIS would treat the petition as one requiring consular processing or port of entry notification, which does trigger the $100,000 fee. F-1 students and STEM OPT holders must understand that international travel during the H-1B adjudication period is extremely risky under the current policy environment and could expose the employer to the $100,000 fee obligation.
Students on STEM OPT extensions should also be careful: STEM OPT authorization is tied to continued employment with an E-Verify employer and carries its own reporting requirements. Any disruption to employment or status prior to H-1B approval could jeopardize the change-of-status and potentially bring the beneficiary within the Proclamation's scope.
Practical Guidance for Employers and H-1B Candidates
Given the complexity and the significant financial exposure created by this Proclamation, Cann Legal Group recommends the following steps for any employer or H-1B candidate affected by these rules:
- Confirm the beneficiary's physical location before filing. If the beneficiary is outside the United States or plans to travel abroad before adjudication, consult with immigration counsel to assess fee applicability;
- Budget $100,000 per petition for any new H-1B filing involving a beneficiary who is outside the U.S. or who may depart during adjudication;
- Do not rely on a valid visa stamp as fee exemption for new petitions filed while the beneficiary is abroad;
- Avoid international travel for F-1/OPT/STEM OPT beneficiaries from the date the H-1B petition is filed until USCIS approves the change of status;
- Monitor litigation developments — court injunctions may pause fee enforcement, but employers cannot assume this protection will be in place at the time of any specific filing;
- Consult immigration counsel for any H-1B filing made on or after September 21, 2025, to ensure full compliance and to assess whether a National Interest Exception may be available.
This is one of the most consequential changes to the H-1B program in decades. The $100,000 fee is not a regulatory fee in the traditional sense — it is a Presidential Proclamation designed to fundamentally alter the economics of H-1B sponsorship. Employers and candidates who are not prepared will face automatic denials with no opportunity to correct the deficiency.
The attorneys at Cann Legal Group are available to provide individualized guidance on H-1B filings under the new fee requirement. Contact us to schedule a consultation.