DHS Further Clarifies Scope of $100,000 H-1B Fee, Provides Payment Mechanism and Guidance for National Interest Exception

U.S. Citizenship and Immigration Services (USCIS) recently posted further guidance on the new $100,000 H-1B fee by posting information on its website clarifying when the fee will apply and how to pay it.  Per this latest update, USCIS confirmed that the fee applies to new (which we understand to mean first-time) H-1B petitions filed on or after September 21, 2025 on behalf of beneficiaries who are outside the United States and do not have a valid H-1B visa.  However, the new information from USCIS also states that the fee will apply if an H-1B petition is filed on or after September 21, 2025 and “requests consular notification, port of entry notification, or pre-flight inspection” for the beneficiary (commonly referred to as “consular processing”), as opposed to a change of status or amendment/extension of stay.  While the fee will not apply to amendments or extensions of status for a current H-1B beneficiary or a change of status to H-1B, USCIS’ website provides that if a petition requests a change of status or amendment/extension of stay but USCIS determines that the beneficiary is ineligible for the change of status or amendment/extension of stay (for example, because the beneficiary is not maintaining their status or leaves the U.S. prior to adjudication of a change of status request), then the fee will apply and payment must be made.  Therefore, it appears that that the fee will apply in certain circumstances even for existing H-1B visa holders.

USCIS has established the ability to pay the $100,000 fee through pay.gov and states in this new website update that it is expecting payment to be made prior to filing the petition with USCIS; “Petitions subject to the $100,000 payment that are filed without a copy of the proof of the payment from pay.gov or evidence of an exception from the Secretary of Homeland Security will be denied.”  It appears that USCIS is not (yet) denying petitions outright; rather, reports from other immigration practitioners across the country indicate that USCIS has been issuing a Request for Evidence (RFE) asking for evidence of payment of the fee or evidence of a granted exception.  That being said, it is not yet clear whether these RFEs indicate that petitioners will be provided the opportunity to submit the fee upon receipt of the RFE, or whether USCIS will deny these petitions if proof is not submitted to USCIS that payment was made before the petition was filed.

USCIS’ website update also provides guidance on who may be eligible for a “National Interest Exception” (NIE) and how to apply for it.  The website now states, “Exceptions to the $100,000 payment are granted by the Secretary of Homeland Security in the extraordinarily rare circumstance where the Secretary has determined that a particular alien worker’s presence in the United States as an H-1B worker is in the national interest, that no American worker is available to fill the role, that the alien worker does not pose a threat to the security or welfare of the United States, and that requiring the petitioning employer to make the payment on the alien's behalf would significantly undermine the interests of the United States.”  Based on this, we expect that NIEs may be reviewed with a high level of scrutiny and seldom granted.  But, given that we are in the very early stages of implementation of this new system, we do not yet have enough information to assess how the government will be processing and approving NIEs.  Petitioners seeking a NIE must email in a request to DHS at H1BExceptions@hq.dhs.gov along with supporting documentation.

Employers filing H-1B petitions for beneficiaries who are outside of the U.S. should proceed with caution, understanding that USCIS may deny the petition without payment of the $100,000 fee (USCIS does not refund filing fees for denied petitions).  For employers filing petitions for beneficiaries who are in the U.S., parties should take all reasonable measures to ensure that the petition can be filed—and will be approved—either as a change of status or extension/amendment of stay, rather than for consular processing.  Based on current guidance, that is the only way to avoid this fee, other than being granted the NIE.  Employers should communicate clearly with all current and prospective H-1B beneficiaries about maintenance of status and other relevant factors such as avoiding international travel when required, so that beneficiaries are not unintentionally triggering consular processing of an H-1B petition.

While USCIS’ latest guidance does provide more information on the applicability and payment mechanisms for the $100,000 fee, we are still left with questions.  Litigation challenging the fee also remains ongoing, the outcomes of which may (or may not) impact its scope or enforceability.