New $100,000 H-1B Fee Applies Only to Overseas Petitions

(HYDERABAD, INDIA) Confusion over a new $100,000 H-1B fee triggered a rush of calls from Indian students and tech workers in the United States 🇺🇸 this week. But immigration attorneys and official guidance now say the fee will not hit F-1 OPT students who file an H-1B change of status from inside the country. The policy, effective September 21, 2025, is aimed at new H-1B petitions filed for people outside the United States, not students and early-career professionals already in the U.S. transitioning from study to work.

Under the rule, employers must pay a one-time $100,000 fee for new H-1B petitions filed for beneficiaries abroad. By contrast, students on F-1 or working under Optional Practical Training (OPT) inside the U.S. can move to H-1B through an in-country change of status without triggering the fee, according to immigration attorneys who spoke at the “CM Pravaasi Prajavani” program in Hyderabad and subsequent legal analyses. VisaVerge.com reports that the fee is narrowly tailored and does not apply to existing H-1B holders, extensions, or renewals filed inside the U.S.

USCIS guidance circulated in late September confirms the policy applies prospectively to new H-1B petitions filed on or after September 21, 2025, for beneficiaries outside the country. That means F-1 students and OPT workers already in the U.S., whose employers file an H-1B petition requesting a change of status, remain outside the scope of the fee. Existing H-1B holders are also excluded, even if they travel, though attorneys caution that some travel-related scenarios remain unsettled.

Policy Changes — Key Points

• Scope: The fee applies to new H-1B petitions filed for beneficiaries who are physically outside the U.S. at the time of filing.
• Exclusions: It does not apply to:
  • F-1 or OPT students already in the U.S. who file an in-country H-1B change of status.
  • Existing H-1B holders filing extensions or renewals from inside the U.S.
• Effective date: Applies to petitions filed on or after September 21, 2025.

Attorneys stress that timing and location matter. If an employer files a new H-1B for someone abroad after the effective date, the fee attaches. If the same person is inside the U.S. in lawful status and the employer requests a change of status to H-1B, the fee does not apply. This split has real financial consequences for companies recruiting overseas compared to those hiring students nearing the end of OPT who already live and work in the U.S.

Edge Cases and Unsettled Areas

There are several grey areas that could affect specific cases:

• H-4 dependents applying for H-1B from abroad may be subject to the fee.
• A student who departs the U.S. before filing and remains abroad at filing time could fall under the rule.
• Potentially unclear scenarios:
  • H-1B “transfers” filed while the beneficiary is outside the U.S.
  • Re-entry after travel for existing H-1B holders (current guidance suggests exemption, but travel-related outcomes are unsettled).
• DHS can waive the fee in national interest cases, but the criteria and process are not yet defined and may invite legal challenges.

Important: The Department of Homeland Security’s authority to waive the fee exists, but the specific waiver criteria are not publicly explained — do not assume automatic relief.

Impact on Applicants and Employers

For students:
– The usual path—pre-completion or post-completion OPT followed by H-1B change of status—remains open and free of the $100,000 fee, provided the employer files inside the U.S. and requests a change of status.
– This is especially important for STEM graduates on the 24‑month OPT extension who time H-1B cap petitions and work authorization to avoid gaps.

For employers:
– Hiring an in-country F-1/OPT candidate and filing a change of status avoids the $100,000 fee.
– Filing for a candidate who is abroad after September 21, 2025, adds $100,000 on top of existing H-1B filing fees (including fraud prevention and ACWIA fees).
– Companies with global hiring pipelines may reconsider recruitment strategies, prioritizing in-country talent to control costs.

Labor market effects:
– The rule increases the relative cost of hiring from abroad, nudging firms toward candidates already in the U.S.
– This could benefit some students seeking earlier offers, but reduce cross-border flexibility for employers needing niche skills.

Practical Steps & Recommendations

Students and employers should take these concrete actions:

1. Ensure the employer’s H-1B petition:
   • Requests a change of status while the beneficiary is physically in the U.S. in valid F-1/OPT status.
2. Avoid international travel during critical filing windows unless counsel confirms it won’t affect the change of status request.
3. Maintain clear records of lawful presence and work authorization:
   • I-20s with OPT recommendations
   • EAD cards
4. Watch for USCIS or CBP updates clarifying travel and re-entry scenarios for those with approved H-1B status.
5. Coordinate filing dates and start dates with cap-gap and OPT timelines to prevent gaps in work authorization.
6. Employers should document:
   • Beneficiary’s physical location at filing
   • Beneficiary’s status
   • Explicit request for change of status in the petition

Forms and official resources:
– Employers file H-1B classification and change of status with Form I-129: USCIS: Form I-129
– Students file for OPT work authorization with Form I-765: USCIS: Form I-765
– General H-1B information: USCIS: H-1B Specialty Occupations

Family and Mixed-Status Considerations

• Mixed-status families should plan carefully: an H-4 spouse applying for H-1B from abroad may trigger the fee.
• If the spouse is in the U.S. and the employer files with an in-country change of status, the fee should not attach.
• Travel timing, employer readiness, and the cap season calendar are often decisive.

Litigation Risk and Future Uncertainty

• Legal challenges are possible. Litigation could pause or modify parts of the policy.
• For now, the framework is clear: fee applies to new overseas petitions; it spares F-1 OPT and in-country change of status cases.
• Employers should prepare contingency plans but continue filings under current guidance.

Final Takeaway

For Indian students and professionals already in the United States:

• Stay in valid status (F-1/OPT).
• Limit travel during filing windows.
• Ensure your employer’s petition requests an in-country change of status.

Done correctly, these steps should prevent the imposition of the $100,000 H-1B fee, allowing the pathway from classroom to career to proceed without the added six-figure cost.