US Clarifies $100K H-1B Fee; Current Holders Exempt

The U.S. government has moved to calm weeks of confusion by clarifying when the new $100,000 fee for certain H-1B visa filings will apply, and who will receive an exemption. In guidance issued on October 20, 2025, U.S. Citizenship and Immigration Services (USCIS) said the fee applies only to brand-new H-1B petitions filed for people who are outside the United States and do not already hold H-1B status. The agency confirmed that current H-1B workers in the United States and many F-1 students shifting to H-1B through a change of status inside the country will not pay the fee.

USCIS stressed that the rule took effect for filings made on or after September 21, 2025, at 12:01 a.m. EDT, and it does not reach back to petitions filed earlier. This clarification follows President Trump’s September 19, 2025 announcement of the fee and sets key rules around timing, filing type, and payment.

Key distinction: new overseas filings vs. in-country filings

USCIS’s guidance draws a bright line between “new overseas filings” and “in‑country” filings such as extensions, amendments, and changes of status. That distinction determines who must pay the $100,000 fee and who gets an exemption.

• Petitions that request a change of status from F-1 to H-1B while the beneficiary remains in the U.S. are exempt from the fee.
• Current H-1B holders filing extensions, amendments, or employer transfers inside the U.S. are exempt.
• Petitions for people outside the U.S.—typically tied to a consular visa application—are subject to the fee, unless the Department of Homeland Security approves a rare exception.

USCIS said this approach aims to avoid penalizing those who have already built work and study lives in the United States, while applying the cost to employers bringing first-time H-1B workers from abroad.

Examples and practical effects

• The exemption covers many filings for early-career graduates on F-1 OPT and existing H-1B holders continuing or changing roles.
• Employers bringing overseas candidates for the first time may face large upfront costs and could change hiring strategies accordingly.
• USCIS emphasized that the filing type at the time USCIS receives the petition is the main dividing line—not later actions.

“A petition filed inside the United States for an H-1B extension, amendment, or change of status does not require the fee, even if the person later departs and seeks visa stamping based on the same approved petition.”

When the fee applies (specific triggers)

The fee applies when an employer files a petition that requests:

• Consular processing (consular notification)
• Port-of-entry notification
• Pre-flight inspection

These requests signal USCIS that the worker will process the visa abroad, and the rule treats the filing as a new overseas petition.

USCIS also warned:
– If a change-of-status case is filed but the beneficiary leaves the U.S. before adjudication, or USCIS finds the beneficiary lacked valid status at filing, the change of status will be denied and the petition must be converted to consular processing—triggering the $100,000 fee.

Payment and filing mechanics

• Employers must make the $100,000 payment in advance through pay.gov and include proof of the scheduled payment when filing the H-1B petition.
• Filings that should include the fee but lack proof of payment—or proof of an approved exception—will be denied. There is no cure after filing.
• Attorneys advise aligning internal processes so the pay.gov confirmation is available before submission.
• Recommended filing practice:
  1. Include the pay.gov receipt (if fee applies).
  2. If claiming an exemption, attach a short cover note explaining the basis (e.g., beneficiary in F-1; petition requests change of status).

Impact on international students and travel warnings

• F-1 students (including OPT and STEM OPT participants) can move to H-1B via in‑country change of status without paying the fee.
• This preserves the common F-1 → OPT → H-1B path and eases campus recruiting concerns.
• Important travel warning: If a student departs the U.S. before USCIS approves the change of status and later needs consular processing, the employer will face the $100,000 fee.
• Similarly, beneficiaries changing from other statuses (e.g., L-1 to H-1B) are exempt only if they remain in the U.S. through approval.

Practical advice for employers and beneficiaries

• Keep the beneficiary in the United States while a change-of-status H-1B petition is pending to preserve the exemption.
• Confirm the petition requests change of status (not consular processing) unless the employer intends to pay the fee.
• If travel is unavoidable, consult counsel about timing and whether to use premium processing (Form I-907) to shorten risk windows.
• Retain copies of current I-94, F-1/H-1B approvals, and any cap-selection notices.
• For fee-triggering cases, submit pay.gov proof with the petition—do not rely on correcting the omission after filing.
• Use calendar reminders for status end dates, keep SEVIS and I-94 records current, and coordinate travel plans with legal counsel.

Strategic effects on hiring and talent pipelines

• Large firms hiring first-time overseas candidates may face steep costs and could shift to:
  • Recruiting international students already in the U.S.
  • Prioritizing in-country transfers of existing H-1B holders
  • Investing in PERM-based green-card sponsorship and local training
• Analysis (e.g., VisaVerge.com) suggests companies will try to maximize in-country pipelines and reduce first-time overseas filings while legal challenges proceed.

Narrow exception: “extraordinarily rare” national interest waiver

USCIS said the Secretary of Homeland Security may approve an exception in extraordinarily rare circumstances. To qualify, a case must show:
– Worker’s presence is in the national interest
– No qualified U.S. worker is available for the role
– The worker poses no security risk
– Requiring payment would harm U.S. interests in a serious way

USCIS emphasized that blanket exceptions are not permitted and that each request requires detailed evidence. Employers should prepare robust documentation and expect long odds.

Legal landscape and sunset clause

• The presidential proclamation set a 12-month sunset on the fee unless extended.
• Multiple lawsuits (including by the U.S. Chamber of Commerce) challenge the fee’s lawfulness; courts may issue injunctions or other relief that could alter timing.
• Employers must model both scenarios: fee stays vs. fee enjoined.

Filing details and related forms

• Employers still need a certified LCA from the Department of Labor and must file Form I-129 for H-1B petitions.
• Many will choose Form I-907 for premium processing where faster adjudication helps preserve in-country change-of-status windows.
• Dependents use Form I-539 for H-4 status adjustments or extensions.

Quick reference links:
– USCIS H-1B program overview and updates: H-1B Specialty Occupations
– Petition for a Nonimmigrant Worker: Form I-129
– Premium Processing Service request: Form I-907
– Application To Extend/Change Nonimmigrant Status: Form I-539

Final takeaways

• The core rule: the $100,000 fee applies to new overseas H-1B cases; in‑country changes of status, extensions, and amendments are exempt.
• This distinction has major financial consequences for hiring patterns, travel decisions, and start dates across tech, engineering, health, and research sectors.
• Careful filing strategy, tight status management, and early coordination among HR, finance, and legal teams offer the best protection against avoidable costs.
• Watch litigation and USCIS updates closely—these will determine whether the fee is short‑lived or becomes a lasting feature of the H-1B system.