In more detail
Who is subject to the USD 100,000 payment?
The guidance confirms that the Proclamation applies to:
- New H-1B Petitions filed on or after 12:01 am Eastern on September 21, 2025 on behalf of beneficiaries who are outside of the United States and do not have a valid H-1B visa;
- New H-1B Petitions filed on or after 12:01 am Eastern on September 21, 2025 that request consular notification, port of entry notification, or pre-flight inspection for a foreign national in the United States; and
- H-1B Petitions filed on or after 12:01 am Eastern on September 21, 2025 that request an amendment, change of status, or extension of stay for a foreign national inside the United States where USCIS determines that the foreign national is ineligible for the request or if the foreign national leaves the United States prior to adjudication of a change of status.
The guidance confirms that the Proclamation does not apply to:
- Any previously issued and currently valid H-1B visas;
- Any H-1B Petitions filed prior to 12:01 am Eastern on September 21, 2025;
- Any H-1B Petitions filed on or after 12:01 am Eastern on September 21, 2025 that request an amendment, change of status, or extension of stay for a foreign national inside the United States where USCIS grants the amendment, change of status or extension; or
- Foreign nationals who subsequently leave the United States and apply for an H-1B visa based on the approved petition and/or seek to reenter the United States with a valid H-1B visa.
USCIS also confirms prior guidance in relation to international travel by current H-1B visa holders – the Proclamation does not preclude current H-1B visa holders or any H-1B beneficiary following petition approval noted above, from traveling in and out of the United States.
Frequently asked questions
How does an employer make the USD 100,000 payment?
For those H-1B Petitions subject to the Proclamation, USCIS confirms that employers/petitioners must submit proof of the USD 100,000 payment or evidence of an exception from the Department of Homeland Security. Without either evidence of payment or the exception, USCIS will deny the H-1B Petition.
Petitioners must submit the required USD 100,000 payment at https://www.pay.gov/public/form/start/1772005176 prior to filing the H-1B Petition with USCIS. Per the pay.gov website, a full refund will be processed if the petition is not approved. However, USCIS does not specifically mention payment refunds in its guidance.
What is the process to request an exception to the USD 100,000 payment?
In contrast to the Proclamation’s broader scope of potential exceptions to the USD 100,000 payment, USCIS’ guidance suggests that exceptions will be granted in very limited cases, specifically 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”. Petitioners must send a request and all supporting evidence to H1BExceptions@hq.dhs.gov. USCIS’ guidance is silent on the potential timeframe for exception request review.
What does this latest guidance mean for employers?
From the latest USCIS guidance, the main takeaways are that:
- The USD 100,000 payment does not apply to the following:
- H-1B Cap Petitions that request a change of status to H-1B for beneficiaries in the United States;
- H-1B Portability or Change of Employer Petitions requesting an extension in the United States; or
- H-1B Amendment or Extension Petitions.
- Where the USD 100,000 payment does apply, an employer must submit payment or request an exception in advance of filing the H-1B Petition.
- Most cases will likely not qualify for an exception to the USD 100,000 payment.
While the guidance provides clarity on key questions arising from the Proclamation, it does not account for all the potential variables critical to the immigration strategy in a particular case. Employers that evaluated potential impacts following the September 19, 2025 Proclamation should revisit the petitions that may be in scope to determine whether the company will either make the USD 100,000 payment or request an exception from the Department of Homeland Security (DHS).
Is it possible that the proclamation will be put on hold?
Yes. Whether the Proclamation will be implemented as written remains to be seen. On October 3, 2025, a group of organizations and individuals filed a lawsuit challenging the Proclamation, arguing the President exceeded the statutory authority granted to him under the Immigration and Nationality Act by imposing the USD 100,000 payment.
On October 16, 2025, the US Chamber of Commerce filed a lawsuit against the Proclamation claiming that it is unlawful and seeking a permanent injunction against its implementation. This lawsuit is the second legal challenge against the Proclamation, and it is anticipated that the plaintiffs in one or both lawsuits will seek a temporary or preliminary injunction against the Proclamation’s implementation. A decision on such a request could be issued in the coming weeks.
