Cohen, Tucker + Ades P.C. is providing an urgent update for all U.S. employers and foreign nationals regarding the recently announced $100,000 supplemental H-1B visa petition payment.

Following widespread confusion and anxiety across the tech, medical, and academic sectors, U.S. Citizenship and Immigration Services (USCIS) has released detailed guidance that clarifies the specific, narrow circumstances under which this unprecedented fee will apply. This clarification provides significant relief for many domestic employers and foreign graduates already in the United States.

The Good News: Who is Exempt from the $100,000 Fee?

The USCIS guidance draws a clear distinction between filings for foreign nationals outside the U.S. and those already inside the U.S. and in valid status.

The $100,000 supplemental fee DOES NOT APPLY to the vast majority of petitions filed for employees already working or studying domestically. Specifically, the fee is waived for petitions requesting:

• Change of Status (COS): This is a massive relief for thousands of international students transitioning from F-1 (Student) status to H-1B after graduation (including those on OPT/STEM OPT). If the foreign national is already in the U.S. in a valid nonimmigrant status and the COS is granted, the fee is not required.

• Extension of Stay: Petitions filed to extend an H-1B worker’s authorized stay in the U.S. are exempt.

• Amendment Petitions: Petitions filed to amend the terms of employment (e.g., location changes, job duty changes) are exempt.

• Current H-1B Holders and Prior Filings: The fee does not apply to any H-1B visa holder with a currently valid visa, or to any petition filed before the effective date of the proclamation (September 21, 2025). Current H-1B holders can continue to travel in and out of the U.S. without being subject to the fee.

Who MUST Pay the $100,000 Fee?

The supplemental payment is narrowly targeted to new H-1B petitions filed on or after September 21, 2025, for beneficiaries who are:

1. Outside the United States and do not possess a valid H-1B visa.

2. In cases where the petition explicitly requests Consular Notification or Port of Entry Notification, rather than a Change of Status.

3. In situations where a request for a Change of Status or Extension is filed, but USCIS determines the beneficiary is ineligible for the domestic benefit (e.g., they violated status or departed the U.S. before adjudication). If the petition is then approved for consular processing, the fee applies.

The High Hurdle of “National Interest” Exceptions

The Proclamation allows for exceptions to the $100,000 fee for a worker whose presence is determined to be in the “national interest.” However, the USCIS guidance sets an “extraordinarily rare” and “high threshold” bar for these waivers.

Employers seeking this exception must prove:

• The worker’s presence is definitively in the national interest.

• No American worker is available to fill the role.

• The worker poses no security threat.

• Requiring the employer to pay the fee would significantly undermine U.S. interests.

Strategic Implications for Employers

While the clarification offers relief for domestic change-of-status filings, the new rule creates immediate challenges for companies that rely on recruiting talent from abroad.

For U.S. employers, it is essential to:

1. Prioritize Domestic Talent Pipeline: Maximize the use of the F-1 to H-1B change-of-status pipeline to avoid the $100,000 fee.

2. Review Consular Processing: Carefully evaluate the risk and cost before filing new petitions that require consular processing for a foreign national abroad.

3. Ensure Status Compliance: For employees filing a change-of-status, strict maintenance of the underlying nonimmigrant status (e.g., F-1 OPT) is critical. Any status violation could result in a denial of the COS and trigger the fee obligation.

The complexity of H-1B policy continues to evolve rapidly, necessitating vigilance and a precise legal strategy. The attorneys at Cohen, Tucker + Ades P.C. are actively monitoring all litigation and subsequent agency interpretations to ensure our clients remain compliant and their strategic goals are met.

If your company is navigating the new H-1B requirements or if you have questions about the applicability of the $100,000 fee to your workforce, please contact us for expert legal counsel.

Sources:

USCIS | H-1B Specialty Occupations, Presidential Proclamation on Restriction on Entry of Certain Nonimmigrant Workers

Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. You should not act upon any information contained herein without seeking professional legal counsel.