U.S. Citizenship and Immigration Services (USCIS) provides guidance defining the H-1B visa program and clarifying recent changes, including the electronic registration process and the new Presidential Proclamation on worker entry. HR professionals must rely on this guidance to ensure petitions meet the technical and procedural requirements for the Specialty Occupation classification.
Key USCIS Guidance on the New $100,000 H-1B Payment
USCIS has issued crucial guidance clarifying the scope and payment of the new $100,000 fee introduced by the Presidential Proclamation effective September 21, 2025. This guidance provides significant clarity for employers:
- Exemption for In-Country Workers: The fee does not apply to petitions filed for beneficiaries already inside the United States. This offers substantial relief for employers sponsoring F-1 students for a change of status to H-1B, or those filing for an extension of stay or amendment for current H-1B holders, provided the status is granted.
- Applicability: The fee applies to new H-1B petitions filed on or after the effective date for beneficiaries who are outside the United States and do not hold a valid H-1B visa, or when the petition requests consular notification, port-of-entry notification, or pre-flight inspection. This means it does not apply to those who are already in H-1B status or in another status.
- Mandatory Pre-Payment: USCIS explicitly requires that the $100,000 fee must be paid prior to filing the Form I-129 petition using the H-1B payment form from pay.gov, and proof of payment (from pay.gov) must be submitted at the time of filing. Petitions filed without this proof will be denied.
- National Interest Exception: For employers seeking an exception to the fee, USCIS guidance sets an “extraordinarily rare” standard, requiring proof that the worker’s presence is in the national interest, that no qualified American worker is available for the role, and that the fee would “significantly undermine” U.S. interests.
Next Steps for Employers
While this proclamation faces some legal challenges employers should still prepare to comply if it is permitted to move forward. To ensure compliance and mitigate financial risk under this new rule, HR and legal teams should immediately implement the following steps based on USCIS guidance:
- Review Candidate Recruiting Strategy: Prioritize the recruitment of candidates who are currently in the U.S. and eligible for a Change of Status (e.g., from F-1 to H-1B) to avoid the $100,000 payment.
- Audit Petition Filing Process: Update internal checklists to mandate that proof of payment for the $100,000 fee (or clear documentation supporting an exemption) is included with all applicable Form I-129 submissions to prevent automatic denial.
- Document Eligibility for Exemption: For all in-country filings (Change of Status, Extension, Amendment), ensure comprehensive documentation is maintained proving the beneficiary’s valid nonimmigrant status at the time of filing, as ineligibility could result in the fee being retroactively applied.
- Seek Legal Counsel: Consult with immigration attorneys to determine the “extraordinarily rare” circumstances under which a National Interest Exception might be pursued, gathering evidence that demonstrates no available U.S. worker and that the payment would undermine U.S. interests.
