U.S. Citizenship and Immigration Services (USCIS) has published detailed guidance that sharply limits the reach of President Trump’s September 19 proclamation imposing a US$100,000 surcharge on many new H-1B petitions. The agency confirmed that the payment is required only for petitions **filed on or after September 21, 2025 that (1) name a beneficiary who is outside the United States and lacks a valid H-1B visa, or (2) request consular, port-of-entry, or pre-flight inspection notification.** Petitions seeking extensions, amendments, changes-of-status or transfers for workers who remain in lawful status inside the United States are exempt. USCIS also clarified that cases denied for change-of-status will not be approved for consular notification unless the $100,000 is first remitted, effectively putting the onus on employers to pre-pay if there is any chance a case could be converted to consular processing.
The October 20 guidance, released as a policy alert and highlighted in an October 24 client bulletin, answers many unresolved questions from the business immigration bar. For example, it states that H-1B holders who paid the fee once do not have to pay it again when applying for visas abroad or re-entering the country, alleviating concerns about double payments. The agency also outlined the narrow circumstances under which the Secretary of Homeland Security may waive the fee—essentially national-interest cases where an employer proves no qualified U.S. worker is available.
Practically, the update means that **most routine in-country extensions and amendments—historically 70-plus percent of H-1B filings—are no longer subject to the six-figure levy.** Companies can therefore continue to keep existing foreign talent on payroll without incurring crippling new costs, although they still face the administrative burden of producing pay.gov receipts or exemption letters with every filing. The guidance leaves intact other proclamation provisions, including a prohibition on admitting any H-1B worker who has not yet satisfied the payment requirement.
Immigration advocates hailed the clarification but said litigation will continue. The U.S. Chamber of Commerce and other business groups argue that any fee above the cost of service violates the Immigration and Nationality Act. Meanwhile, employers caught between filing deadlines and fiscal-year cap pressure are scrambling to model budgets and to decide whether to re-route prospective hires through affiliate offices abroad. **Human-resources teams are advised to update checklists immediately, verify whether beneficiaries are inside or outside the country at filing, and obtain proof of payment well in advance of petition deadlines.**
The October 20 guidance, released as a policy alert and highlighted in an October 24 client bulletin, answers many unresolved questions from the business immigration bar. For example, it states that H-1B holders who paid the fee once do not have to pay it again when applying for visas abroad or re-entering the country, alleviating concerns about double payments. The agency also outlined the narrow circumstances under which the Secretary of Homeland Security may waive the fee—essentially national-interest cases where an employer proves no qualified U.S. worker is available.
Practically, the update means that **most routine in-country extensions and amendments—historically 70-plus percent of H-1B filings—are no longer subject to the six-figure levy.** Companies can therefore continue to keep existing foreign talent on payroll without incurring crippling new costs, although they still face the administrative burden of producing pay.gov receipts or exemption letters with every filing. The guidance leaves intact other proclamation provisions, including a prohibition on admitting any H-1B worker who has not yet satisfied the payment requirement.
Immigration advocates hailed the clarification but said litigation will continue. The U.S. Chamber of Commerce and other business groups argue that any fee above the cost of service violates the Immigration and Nationality Act. Meanwhile, employers caught between filing deadlines and fiscal-year cap pressure are scrambling to model budgets and to decide whether to re-route prospective hires through affiliate offices abroad. **Human-resources teams are advised to update checklists immediately, verify whether beneficiaries are inside or outside the country at filing, and obtain proof of payment well in advance of petition deadlines.**
