UPDATE ON H-1B PROCLAMATION REGARDING NEW $100,000 FEE

Background

On Friday, September 19, 2025, President Trump issued an Executive  Order that purports to apply a $100,000 fee to all new H-1B Petitions filed on or after September 21, 2025.  The language of this EO included a hodgepodge of terms for actions taken by USCIS, by CBP and by the State Department (DOS), in processing petitions and visas, and inspecting noncitizens for admission into the US.

Summary

Based on the EO and a later FAQ issued by the White House, a press release by Karoline Leavitt, and guidance issued by USCIS, CBP and DOS, we now can say that the EO does apply to the following filings:

·         Initial H-1B Petitions filed on or after 9/21/2025

·         H-1B Visa applications based on such petitions

·         Anyone who seeks admission to the US based on a petition filed before the effective date, where the visa is issued after the effective date

It does not apply to:

·         Any valid H-1B visas issued prior to the effective date of the EO

·         Any petitions filed before the effective date of the EO

It probably does not apply to:

·         Any H-1B Extension of Status filings where the beneficiary had H-1B status before that date

·         Any H-1B Change of Employer case for such beneficiaries

·         Any H-1B Amendment Petitions for such beneficiaries

·         Any H-1B Concurrent Employment petitions for such beneficiaries

What remains unclear:

·         Will cap-exempt, non-profit H-1B petitions filed after the effective date of the EO have to pay the fee?

·         Will H-1B Visas issued after 9/21/2025 that are based on petitions filed before the effective date of the EO trigger the fee at the consulate?

Discussion

The EO left things very, very unclear to say the least.   The agencies involved have tried to create a semblance of clarity with several other postings, but have not answered all of the questions raised by the EO. 

However, the EO cited Section 212(f) of the Act as the legal basis for its issuance.  That provision in the Immigration Act uses the term “entry” multiple times, and it confirms  that the purpose of the EO is to combat “unrestricted entry” of H-1B visa holders.

The White House FAQ issued on 9/21 confirmed that the fee does apply to 

·         New H-1B petitions filed on or after the effective date.

It also confirmed that it does not apply to 

·         A person with a previously, validly issued H-1B visa seeking to re-enter the US after traveling outside the US

·         Any petitions filed prior to the effective date of the EO (but that only tells us whether USCIS can charge the fee)

·         Any H-1B renewal petitions

Ms. Leavitt’s press release confirmed that

·         This is not an annual fee, but a onetime fee

·         Anyone with a currently valid H-1B visa can leave and re-enter the US without payment of the fee

·         The fee only applies to new visas

·         It does not apply to “renewals” or to current visa holders

·         It is intended to apply only to cases selected in the coming year’s H-1B Lottery

The  USCIS Memo of 9/20/2025 from Director Joseph B. Edlow stated that the EO does not apply to non-citizens who

·         Are beneficiaries of pending petitions filed before the effective date

·         Are beneficiaries of petitions approved prior to the effective date

·         Possess validly issued H-1B visas

CBP and DOS guidance is identical.

What remains unclear:

However, USCIS also issued a FAQ on 9/21/25 that expanded the scope of the Elder Memo and contradicted both the Elder Memo and the press release of Ms Leavitt:

·         The fee will apply to  2026 Lottery cases and

·         “Any other H-1B Petitions” submitted after the effective date.

The scope of that language in the second phrase in the H-1B FAQ is exceptionally broad.  And it is broad enough to include multiple cases filed on behalf of beneficiaries who already have H-1B status and therefore are “beneficiaries of petitions filed or approved” prior to the effective date, but whose employer, after the effective date of the EO, files an

·         H-1B extension of stay

·         H-1B change of employer

·         H-1B amendment

·         H-1B petition for concurrent employment.

Those cases are explicitly covered by the Edlow memo (and are exempted from the fee), and do not involve anyone trying to enter the US; they all are filed for people who are here.  Therefore these cases should not trigger the $100,000 fee.   Until such time as USCIS issues clarification on its FAQ, however, we cannot be sure if those cases will trigger the fee.

In addition, cap-exempt, non-profit petitioners are left with a confusing outlook.   The H-1B FAQ (“and any other H-1B petitions” filed after the effective date) directly contradicts Ms. Leavitt’s confirmation that the EO only will apply to cases that are picked in the next H-1B Lottery.  Since cap-exempt, non-profit employers never use the Lottery, their cases should not trigger the fee.  But until that issue is clarified, those petitioners who file an H-1B on or after the effective date should be prepared to do one of two things:

1.      pay the new fee, or

2.      submit evidence to show that a waiver is proper because the hiring of the beneficiary will be in the national interest and will not pose a threat to the security or welfare of the US. 

Finally, none of the official government postings address the situation where a cap-subject petition is filed before 9/21/2025 but the visa is processed after that date.  They all seem to agree that USCIS cannot charge the fee, but they are silent on whether DOS can when the beneficiary applies for an initial H-1B visa.  Until this issue is clarified, the petitioner or beneficiary should be prepared to pay the fee or seek a waiver as described above.

We will keep this space updated as the White House, DHS, DOS and other interested agencies issue further clarifications.