Updated October 21, 2025
On Friday, September 19, 2025, President Trump issued an Executive Order (the “Order”) imposing a $100,000 fee (the “$100K Fee”) impacting certain H-1B nonimmigrant petitions. (The Order took effect Sunday, September 21, 2025 at 12:01 AM ET.)
Yesterday, United States Citizenship and Immigration Services (“USCIS”) issued policy guidance on implementation of the Order which greatly reduced the impact of the $100K Fee and set forth a process for requesting exceptions to the Fee.
THE ORDER DOES NOT APPLY TO THOSE WHO ALREADY POSSESS H-1B STATUS
The new USCIS policy instructs that the Order does not apply to any previously issued and currently valid H-1B visas, or to any H-1B petitions submitted prior to 12:01 a.m. eastern daylight time on September 21, 2025.
In addition, the order does not prevent any holder of a current H-1B visa, or any beneficiary following petition approval, from traveling in and out of the United States.
THE ORDER DOES NOT APPLY TO THOSE ALREADY PRESENT IN THE U.S.
The Order also does not apply to any future H-1B petitions that request a change of status for a noncitizen already inside the United States. This means that a broad category of workers who are already present in the U.S., for example, students on an F-1 visa, trainees on a J-1 visa, or workers present on another type of work visa, will not be subject to the $100K Fee if they seek to change status to H-1B without departing the U.S. Moreover, employers seeking to sponsor candidates via the H-1B lottery may now confidently pursue that process, with regard to candidates already present in the U.S., without concern that the $100K Fee will apply to those hires.
Further, the beneficiary of such petition will not be considered to be subject to the payment if he or she subsequently departs the U.S. and applies for a visa based on the approved petition and/or seeks to reenter the United States on a current H-1B visa.
EXCEPTIONS AVAILABLE WHEN IN THE NATIONAL INTEREST AND NO US WORKER AVAILABLE
The USCIS policy also provides a basis for securing an exception for applicants who are located outside of the U.S. and do not qualify for the exceptions stated above. Exceptions to the $100K Fee will be granted by the Secretary of Homeland Security in “extraordinarily rare circumstances” where it can be shown that (1) the professional role is in the national interest, (2) that no American worker is available to fill the role, (3) that the worker does not pose a threat to the security or welfare of the United States, and (4) that requiring the petitioning employer to make the payment on the alien’s behalf would significantly undermine the interests of the United States.
FEE PAYMENT PROCESS
For those petitions subject to the $100K Fee, USCIS has established a payment process. Payment must be made prior to filing the H-1B Petition with USCIS and proof of payment must be submitted with the petition. Petitioners should submit the required $100,000 payment at the pay.gov portal.
ANALYSIS
For those nonimmigrant workers who are already present in the U.S. in another status, such as F-1 Student or J-1 Trainee, this policy clarification reaffirms their ability to obtain H-1B status without being subject to the $100K Fee. Moreover, it confirms their ability to freely travel outside of the U.S. once in H-1B status without incurring the $100K Fee down the line. This is a large step toward reinstating the status quo for H-1B visa holders that existed before the Order.
Clients who are present in the U.S. and seeking to change status to H-1B should be careful to complete the change of status process by physically remaining in the U.S. until their status is issued, rather than departing to obtain the H-1B visa at a U.S. Embassy prematurely. Otherwise, the need to pay the $100K Fee could be triggered
Employers seeking to hire professional candidates directly from outside the U.S. may seek a National Interest Exception in advance of filing the H-1B petition. This would allow the employer to gain clarity on whether the $100K Fee will apply to the hire. Although few guidelines were provided on the new policy, USCIS has previously provided National Interest Exceptions to workers within the healthcare, education, national security, infrastructure, manufacturing, and logistics industries. USCIS did not announce a filing fee to apply for the National Interest Exception, so employers may aggressively pursue these exceptions.
FordMurray will continue to monitor new guidance from USCIS and relevant agencies related to the $100K H-1B Fee and will provide updates as necessary.
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