| USCIS has recently issued the following clarifications regarding the Proclamation, Restrictions on Entry of Certain Nonimmigrant Workers:
Who is NOT subject to the $100,000 fee:
· The Proclamation does not apply to any previously issued and currently valid H-1B visas, or any H-1B petitions submitted prior to 12:01 a.m. eastern daylight time on September 21, 2025.
· The Proclamation also does not apply to a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, that is requesting an amendment, change of status, or extension of stay for an alien inside the United States where the alien is granted such amendment, change, or extension. Further, an alien beneficiary of such petition will not be considered to be subject to the payment if he or she subsequently departs the United States and applies for a visa based on the approved petition and/or seeks to reenter the United States on a current H-1B visa.
Who is subject to the $100,000 fee:
· The Proclamation applies to new H-1B petitions filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, on behalf of beneficiaries who are outside the United States and do not have a valid H-1B visa.
· The Proclamation applies if a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, requests consular notification, port of entry notification, or pre-flight inspection for an alien in the United States.
· The Proclamation applies if a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, requests a change of status or amendment or extension of stay and USCIS determines that the alien 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).
How to pay the $100,000 fee:
· Petitioners should submit the required $100,000 payment using pay.gov, following the instructions on pay.gov at the following link: https://www.pay.gov/public/form/start/1772005176.
When to pay the $100,000 fee:
· Payment must be made prior to filing a petition with USCIS, as petitioners must submit proof that the payment has been scheduled from pay.gov or evidence of an exception from the $100,000 payment from the Secretary of Homeland Security at the time of filing the H-1B petition. 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.
National Interest Exceptions:
· USCIS has also laid out the criteria for seeking national interest exceptions from the new fee which will only be granted in “extraordinarily rare” circumstances. The employer would be required to demonstrate the following:
· The foreign national’s presence in the United States as an H-1B worker is in the national interest;
· No American worker is available to fill the role;
· The foreign national does not pose a threat to the security or welfare of the United States; and
· Requiring the petitioning employer to make the payment on the foreign national’s behalf would significantly undermine the interests of the United States.
At least two lawsuits challenging the Proclamation have been filed. We will keep you posted on any further developments.
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