The 100-grand* question. Are you affected?

© Attorney Farhad Sethna, 2025

Here’s another episode in the ongoing saga of the H-1b hundred-thousand-dollar proclamation. Like Jason Voorhees of “Friday the 13th” infamy, this is a horror story which never wants to die. (As of this writing, according to Google AI, there are already twelve “Friday the 13th” movies, with a thirteenth crossover co-starring fellow evildoer Freddy from “Nightmare on Elm Street”.  Just trivia, in case you were wondering).  But the 100-grand fee (*US $100,000 for those of you who are not familiar with the American idiom) is NOT a celluloid horror movie – it is a real nightmare for H-1b employers and their H-1b beneficiaries.

As background, on September 19, 2025, Donald Trump issued a proclamation “Restriction on entry of certain non-immigrant workers”.  See the attached scan of the Proclamation.  President Trump decreed that new H-1bs filed on or after September 21, 2025 would be subject to the additional 100-grand fee.  No authority, no law, just the President’s Proclamation.  At the time of this writing, two lawsuits had already been filed against enforcing the Proclamation. The proclamation has created a lot of uncertainty and fear in the H-1b stakeholder community. The USCIS issued clarification or guidance of that proclamation on Monday, October 20, 2025. In reviewing the USCIS guidance, the following scenarios emerge:

The proclamation for the 100-grand fee applies to new H-1bs filed after 12:01 AM Eastern time on September 21, 2025, on behalf of beneficiaries who are outside the United States and do not have a valid H-1b visa.

Therefore, an H-1b employer will have to pay the 100-grand fee if the employer:

  • Files a new petition for a new H-1b classification
  • Files on or after September 21, 2025
  • For a beneficiary who is outside the United States
  • Who does not already have a valid H-1b visa.

The USCIS guidance clarifies that an H-1b petition (it does not specify whether a new or extension petition) is filed on or after September 21, 2025, and that petition requests:

  • A change of status
  • An extension of stay; or
  • An amendment to an existing H-1b, AND
  • The USCIS is NOT able to issue the requested Change of Status, Extension of Status or approval of the amended petition, AND
  • The alien departs the USA PRIOR to the USCIS’ decision on the petition, THEN

the 100-grand fee WILL apply.

 

The proclamation, says the USCIS, will also apply if a first-time, new H-1b beneficiary is inside the USA and the H-1b petition that is filed on or after September 21, 2025 requests:

  • Consular notification;
  • Port of entry notification; or
  • Preflight inspection for an alien who is already in the United States.

Now, to help us wade through this H-1b Proclamation muck, I’ve attached the following documents: 

  • The Proclamation (trumpets, please)
  • The H-1b clarification notice issued by the USCIS on October 20, 2025
  • The I-129 form instruction pages 5 and 6 (disregard the “Draft” notice on the pages – evidently the USCIS did not remove the notice after posting the instructions)
  • The I-129 form itself, pages 2 and 3.

Filing a NEW H-1b for a first-time H-1b or someone who had an H-1b in the past, but is now on some other status:

Let’s get down to the technical details:  on page 2 of form I-129, look at Part 2, questions 2 and 4. Then please also see the attached instructions for Part 2, questions 2 and 4.

As you can see, if the petition is filed for “new employment”, Part 2, Question 2(a), then the selection for Part 2, Question 4 would probably be the corresponding box (b).  To check any other box would very possibly result in a demand by USCIS for the 100-grand fee.

However, regardless of how you fill in Part 2, the 100-grand fee will still have to be paid unless you also complete Part 4, question 1, on page 3, in a certain way:

On the form I-129, the petition for different types of nonimmigrant work visas, at Part 4, on page 3 of the form, “processing information”, question number 1 reads:

“If a beneficiary or beneficiaries named in Part 3 is/are outside the United States, or a requested extension of stay or change of status cannot be granted, state the US Consulate or inspection facility you want notified of this petition is approved.”

Sub-part (a) of Question 1 of Part 4 of the form then goes on to ask the applicant to select the type of office, from which the applicant can choose “consulate”, “pre-flight inspection”, or “port of entry”.  Sub-part (b) of question 1 then asks the applicant to list the office address where the US Consulate, preflight inspection or port of entry is located, and sub-part (c) of question 1 asks the applicant to identify the US state or foreign country where the beneficiary will be presenting himself or herself for grant of travel permission, visa or entry to the United States as an H-1b.

What if the H-1b petition was filed or approved before September 21, 2025?

Please note that any alien who does not already have a valid, current H-1b visa and needs to reenter the USA after foreign travel will need to apply for a new H-1b visa. If they already have the USCIS-approved H-1b classification based on an application filed before September 21, 2025, then they are probably not subject to the 100-grand fee.

The proclamation, however, does not prevent the holder of a current H-1b visa or any other alien beneficiary (say an H-4 dependent) following petition approval from traveling in and out of the United States provided the petition for H-1b classification was submitted before September 21, 2025.

What if the petition is filed on or after September 21, 2025 for an alien within the USA?

A very important question is also answered by the USCIS clarification: if a petition is filed for an alien beneficiary who is inside the USA after September 21, 2025, and the alien seeks amendment, change of status, or extension of stay and the alien is inside the United States when the petition is approved, then the petitioner will not be considered to be subject to the additional 100-grand payment either at the time of application or if the alien beneficiary subsequently leaves the United States and applies for a visa based on the approved petition and then reenters the United States on the new H-1b visa. This is a very important point.

Conversely, the USCIS also goes on to state that, if an H-1b petition which also requests a change of status or amendment or extension of stay cannot be granted by USCIS, then the proclamation will apply and the payment must be made according to the instructions which will be provided by the USCIS. This applies only to applications filed on or after September 21, 2025.

How to pay the 100-grand fee:

The USCIS has decreed that the 100-grand fee must be paid using pay.gov, and provides a link to the webpage to initiate payment. Per the USCIS, payment must be made prior to filing the H-1b petition.

Exception to the 100-grand fee:

While there is an exception to paying the 100-grand fee, the USCIS clearly states that such an exception will be granted only in “extraordinarily rare circumstance”.  Such circumstance requires that the DHS secretary makes a determination that the H-1b beneficiary’s presence in the United States

(1) is in the national interest,

(2) that no American worker is able to fill the role,

(3) that the beneficiary does not represent a threat to the United States’ security or welfare, and

(4) that requiring the petitioner to pay the 100-grand fee would significantly undermine the interests of the United States.

Petitioners who believe that their application would satisfy this requirement may seek an exception by emailing the request and all supporting evidence to H1bexceptions@hq.dhs.gov.

 

Let’s now take up some hypothetical cases:

 

Hypothetical number one:

Say you are an alien in the United States and you already have an H-1b petition approved, which was filed before September 21, 2025, but you do not have a visa to return to the United States after foreign travel. Will the H-1b fee apply to you?

No. Pursuant to the USCIS clarification, the $100,000 fee will not apply to you.

 

Hypothetical number two:

Suppose you are an H-1b employee who already has a petition for H-1b classification approved, and your employer is now seeking an extension on your behalf which is going to be filed on or after September 21, 2025. Does the H-1b fee apply?

Yes, if the petition is filed on or after September 21, 2025 and it requests a change of status, and amendment, or extension of stay, and the USCIS determines that the beneficiary is not eligible for a change of status, denies the amendment requested, or denies the extension of stay within the USA, then the proclamation will apply and payment must be made.  Possibly not completing Part 4, question 1 as explained below (see answer to Hypothetical number three) may remove such application from the obligation to pay the 100-grand fee.

 

Hypothetical number three:

What about a beneficiary who does not hold a current, valid H-1b visa, and whose employer files the H-1b petition after September 21, 2025?

There are two options in this instance:

  1. Alien beneficiary in the USA:

If the petition is filed for an alien who is already in the United States, the petition will not require the additional $100,000 payment. However, in order to ensure that is the case, the petitioner must not seek consular processing, approval at port of entry, or preflight inspection for the beneficiary. The petition must simply be for a change of status. The box that needs to be checked on the H-1b application, form I-129, is part 2 question 2 box (a); the next box in the same section is page 2 part 4 box (b). On page 3 of form I-129, of part 4, the application fields at question 1 (a), (b) and (c) should all be left blank.

 

My strategy would be that the petitioner or their attorney file a detailed letter to accompany the petition, which explains the proclamation, the USCIS guidance, and addresses the issue of why Part 4, Question 1 has been left blank.

 

Per the USCIS clarifications, a beneficiary who is in the USA,

  • for whom a H-1b petition is filed on or after September 21, 2025,
  • who DOES NOT request port of entry or consular processing (ie, leaves Part 4, question 1 (a), (b) or (c) blank)
  • and is approved;

will not be subject to the 100-grand fee if he or she leaves the USA and applies for a H-1b visa to reenter.

 

Now, if the USCIS decides that Part 4, question 1 must be answered before it will adjudicate the petition and therefore demands the 100-grand fee before the petition can be decided, that may be the end of that petition, because the employer will probably not wish to proceed further. But that is, of course, left to the individual employer.

 

  1. Alien beneficiary outside the USA:

The second option is in the case of a beneficiary who is outside the United States and whose employer now petitions for an H-1b visa to allow that alien to enter and work in the United States. If that petition is filed after September 21, 2025, that petition will attract the $100,000 fee. Unless of course, the one (very restricted) exception explained above is granted by the Secretary of the Department of Homeland Security.

 

Hypothetical number four:

“I am going to be eligible for the H-1b lottery in March 2026.  What if I am selected?  Will my employer need to pay the 100-grand fee?”

            If you are in the USA, your employer will most likely, not have to pay the 100-grand fee, unless you select the option under Part 4, Question1 (a), (b), and (c). As I have explained above an application for a change of status, absent any request for consular or Port of Entry processing is not subject to the 100-grand fee.  However, if your employer’s petition on your behalf is approved, and you choose to leave the USA at some point after approval, you will need a H-1b visa to reenter, and we do not know the rules that will apply at that time.

 

Further Developments and conclusion:

Doubtless, additional clarifications will come out from the USCIS and perhaps the US Department of State might shed further light on this onerous proclamation. So far, indications are that prospective alien workers in the United States will be able to seek H-1b status through their employers, provided they are willing to forgo the ability to travel outside the United States during the pendency of the H-1b approvals.

Please also note that the proclamation is valid for only one year (that is, until 11:59 PM on September 20, 2026) unless it is extended.  A federal court may also strike down the proclamation. There is still a lot that is unknown at this time.  Hence, it is possible that, if the proclamation is not renewed, that the H-1b worker may be able to travel outside the United States after the proclamation has expired, and apply for an H-1b visa to reenter the United States without having to pay the 100-grand fee.

As in all matters related to immigration during this administration, please stay tuned for any further developments.  Note that the above analysis should NOT be construed as legal advice on your specific situation.  Please consult a qualified, experienced and competent immigration attorney for specific legal guidance on the specific facts of your case.

Click here for links to the articles and forms referenced in the article above: https://tinyurl.com/22zpupbw

 

© Farhad Sethna, Attorney, 2025

Farhad Sethna has practiced law for over 30 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to farhad@sethnalaw.com. We will try to answer as many questions as possible.