Update Memo: Recommended next steps and updated guidance for companies regarding $100K H-1B fee

Monday, October 20 — USCIS has released formal implementation guidance for the President’s September 19, 2025 Proclamation, Restriction on Entry of Certain Nonimmigrant Workers. 

Effective 12:01 a.m. EDT on September 21, 2025, any new H-1B petition for a beneficiary outside the U.S. that is requesting for consular processing/notification without a valid H-1B visa must include proof of a $100,000 payment made through pay.gov at the time of filing. Petitions subject to the payment that are filed without proof will be denied.

The new guidance also confirms that:

• H-1B filings made within the U.S. (amendments, extensions, or changes of status) are not subject to the payment if approved by USCIS. H-1B filings approved thereafter based on domestic amendments, extensions, or changes of status, are able to travel freely. 
• Petitions filed before September 21 and valid visas remain unaffected. 
• The Secretary of Homeland Security may grant rare exceptions in limited national-interest circumstances, but employers should assume these will be extraordinary and uncommon.

This is a significant tightening of H-1B compliance obligations. Employers should immediately update internal filing procedures, verify pay.gov proof for any new cases after September 21, and carefully manage employee travel to avoid triggering the new payment requirement.

What This Means for Employee Travel

• Travel remains permitted for anyone holding a valid H-1B visa or an approved petition. The Proclamation does not restrict movement in or out of the United States.
• Travel is risky for workers with pending petitions. If an employee leaves the U.S. while a change of status, amendment, or extension is pending, USCIS may find them ineligible for that benefit and convert the case into one that requires the $100,000 payment.
• For employees with pending cases, delay non-essential travel until any in-U.S. filing has been approved. 

What We Now Know For Sure

• The $100,000 fee applies only to new H-1B petitions filed on or after September 21, 2025,  only for beneficiaries outside the U.S. without a valid H-1B visa.
• In-U.S. filings are not subject to the fee. Amendments, extensions, or changes of status approved by USCIS are not subject to the payment, even if the worker later travels post-approval. However, applicants should avoid travel while their petition is pending, since USCIS states that trying to re-enter the U.S. with a pending petition could trigger the fee. 
• Exceptions are possible but rare. The DHS Secretary may waive the fee only in extraordinary national-interest cases. Employers should not rely on this pathway.

What Tech Companies and HR Leaders Should Do Next:

At this stage, the most defensible position for employers is to minimize exposure by keeping H-1B talent onshore and filings domestic whenever possible. While travel itself is not restricted, departures during pending filings can trigger the $100,000 payment requirement if USCIS later determines the employee was no longer eligible for in-U.S. processing. Until early adjudications clarify how these cases will be handled, postpone non-essential travel for applicants with pending petitions and favor in-U.S. extensions or amendments over consular filings.

For companies operating in high-priority or strategically sensitive industries, such as AI, defense technology, semiconductors, or advanced manufacturing, or those that could fall under the U.S. Critical Infrastructure Sectors, there may be a narrow path to request a national-interest exception. You may also qualify if your company is involved in any government contracts, such as work with the Department of Defense. 

If you believe your company or a specific employee may qualify, reach out to us at business@manifestlaw.com. Our team can help assess eligibility and prepare supporting evidence before you consider contacting H1BExceptions@hq.dhs.gov.

Should we file new H-1B petitions now or later? 

For companies considering new H-1B filings for individuals outside the United States after September 21, USCIS has now confirmed that petitions subject to the Proclamation must include proof of a $100,000 pay.gov payment at the time of filing. Petitions filed without that proof will be denied entry to the U.S., eliminating earlier ambiguity about whether the government would collect the fee at any point.

In practical terms, this means employers can proceed with in-U.S. filings (amendments, extensions, or changes of status) without payment, provided the beneficiary remains in valid status while their case is pending. These cases continue to be accepted and, if approved, are not subject to the new fee.

For new hires abroad or cases requesting consular processing/notification, the $100,000 fee is now fully in effect. Those petitions can still be filed, but the $100,000 payment must accompany the submission. Employers should treat these filings as high-stakes exceptions and proceed only where the business need clearly justifies the cost.

If you need additional support and want to weigh the risk of filing an H-1B petition now, contact us at business@manifestlaw.com or call us at (212) 246-6212. You do not have to be a Manifest Law client.