On Oct. 20, 2025, the U.S. Citizenship and Immigration Services provided additional information regarding implementation of the Restriction on Entry of Certain Nonimmigrant Workers Proclamation. The Guidance addresses which H-1B petitions are subject to the Proclamation, how and when to pay the fee and information on requesting an exception to the fee.

Subject to the $100,000 payment:

  • New H-1B petitions filed on or after Sept. 21, 2025, on behalf of beneficiaries who are outside the United States and do not have a valid H-1B visa.
  • H-1B petitions filed on or after Sept. 21, 2025, requesting consular notification, port of entry notification or pre-flight inspection on behalf of beneficiaries who are in the United States.
  • H-1B petitions filed on or after Sept. 21, 2025, requesting a change of status or amendment or extension of stay and USCIS determines that the beneficiary is ineligible for a change of status or an amendment or extension of stay (e.g., is not in a valid nonimmigrant visa status or if the alien departs the United States prior to adjudication of a change of status request).

Not subject to the $100,000 payment:

  • Any previously issued and currently valid H-1B visas or any H-1B petitions filed before Sept. 21, 2025.
  • International travel for any holder of a current H-1B visa, or any H-1B beneficiary following petition approval of H-1B petitions filed before Sept. 21, 2025.
  • H-1B petition filed on or after Sept. 21, 2025, requesting an amendment, change of status, or extension of stay on behalf of beneficiaries inside the United States where the beneficiary is granted such amendment, change or extension.
  • H-1B visa application or H-1B admission based on current H-1B visa for beneficiaries of H-1B petitions filed on or after Sept. 21, 2025, requesting an amendment, change of status, or extension of stay on behalf of beneficiaries inside the United States where the beneficiary is granted such amendment, change or extension.

How to pay the $100,000 payment:

When to pay the $100,000 payment:

  • If the H-1B petition is subject to the payment, payment must be made prior to filing the H-1B petition as the petition must include proof that the payment has been scheduled from pay.gov or evidence of an exception from the $100,000 payment.
  • H-1B petitions subject to the payment that are filed without a copy of the proof of the payment from pay.gov or evidence of an exception will be denied.

Exceptions granted by the Secretary of Homeland Security

  • The guidance states exceptions are for those extraordinarily rare circumstance where the Secretary of Homeland Security has determined that an H-1B beneficiary’s presence in the United States is in the national interest, that no American worker is available to fill the role, that the H-1B beneficiary 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 beneficiary’s behalf would significantly undermine the interests of the United States.
  • Petitioning employers may seek an exception by sending their request and all supporting evidence to H1BExceptions@hq.dhs.gov.

At this time, there are two pending legal challenges to the Proclamation. The first challenge was filed in the District Court for the Northern District of California on behalf of a coalition of health care providers and unions.  A second case was filed by the U.S. Chamber of Commerce in the District Court for the District of Columbia.  Both cases argue that imposition of the fee is a substantive provision of the H-1B law and was not authorized by Congress and is therefore beyond the authority of the President to unilaterally create this requirement by Proclamation.  The complaints also allege that imposition of this fee without an appropriate notice and comment period violates the Administrative Procedure Act. We will monitor the impact the legal challenges have on the validity of the Proclamation.

Please reach out to our immigration counsel if you require assistance evaluating how this policy may affect your workforce or planning.