Client Alert: USCIS Issues Operational Guidance on New $100,000 H-1B Payment

USCIS has issued updated guidance on the H-1B $100,000 payment, providing some much needed clarification for employers. Below is a breakdown of the update and what we now know. 

Who must pay 

The $100,000 payment applies to H-1B petitions filed on/after Sept. 21, 2025, in these scenarios: 

• Beneficiary is outside the U.S. without a valid H-1B visa. 
• Petitions (even if the worker is in the U.S.) that request consular notification / port-of-entry notification / pre-flight inspection. 
• Petitions requesting change of status, amendment, or extension where USCIS later determines the individual is ineligible for that benefit (e.g., not maintaining status; beneficiary departs before adjudication). In those cases, the Proclamation kicks in and the $100,000 payment must be made per USCIS instructions.  

Who is not subject 

• Petitions filed before Sept. 21, 2025. 
• H-1B holders with a currently valid H-1B visa (may continue international travel consistent with standard rules). 
• In-U.S. petitions requesting amendment, change of status, extension, or change of employer that are granted by USCIS (even if the worker later travels to obtain a visa based on the approval).  

How to pay & what proof to file 

• Payment portal: Make the $100,000 payment before filing the H-1B petition via Pay.gov using the form titled “H-1B VISA PAYMENT TO REMOVE RESTRICTION.” Save the Pay.gov confirmation + Agency Tracking ID to include as proof with the I-129 filing. Petitions lacking proof (or a granted exception) will be denied.  

Exceptions (extraordinarily rare) 

The Secretary of Homeland Security may grant an exception only if all of the following are met: 

1. the worker’s presence is in the national interest; 
2. no qualified U.S. worker is available; 
3. the individual poses no threat to U.S. security/welfare; and 
4. requiring payment would significantly undermine U.S. interests. 

How to request: email H1BExceptions@hq.dhs.gov with supporting evidence.  

Litigation status (for awareness) 

Two federal lawsuits (including one led by the U.S. Chamber of Commerce) seek to block the $100,000 payment. Until a court issues an injunction, employers should assume the payment requirement remains in effect.  

Action checklist for employers (immediate) 

1. Screen upcoming H-1B cases for exposure (outside-U.S. filings, consular notifications, or any filing where status eligibility could be questioned).  
2. Require in-country change-of-status filings where feasible and ensure status maintenance to avoid triggering the payment.  
3. Consider exceptions only for truly exceptional, national-interest fact patterns; submit to H1BExceptions@hq.dhs.gov with robust evidence.  
4. Monitor litigation with counsel; if the fee is enjoined, a narrow filing window could open.  

Practical FAQs 

• Does a granted in-country change of status avoid the fee? Yes. If USCIS grants COS/extension/amendment, the fee does not apply, even if the worker later travels to obtain a visa based on the approved petition.  
• What if USCIS denies COS (or the worker leaves before adjudication)? The case typically pivots to consular processing, which triggers the fee. Avoid this or be prepared to pay via the Pay.gov process and file proof.  
• What exactly counts as “proof” of payment? The Pay.gov confirmation showing the transaction and Agency Tracking ID; capture and include it in your filing.  

We can help 

BrownWinick’s immigration team can: (a) triage your H-1B pipeline for exposure, (b) structure in-country filings to minimize fee risk, (c) evaluate exception viability, and (d) prepare compliant packets with payment documentation. 

Questions or urgent filings? Reach out to Matt Mauntel-Medici and we’ll jump on a call to discuss.