© Lawyer Farhad Sethna, 2025
Right here’s one other episode within the ongoing saga of the H-1b hundred-thousand-dollar proclamation. Like Jason Voorhees of “Friday the thirteenth” infamy, it is a horror story which by no means needs to die. (As of this writing, in keeping with Google AI, there are already twelve “Friday the thirteenth” motion pictures, with a thirteenth crossover co-starring fellow evildoer Freddy from “Nightmare on Elm Avenue”. Simply trivia, in case you had been questioning). However the 100-grand payment (*US $100,000 for these of you who usually are not aware of the American idiom) is NOT a celluloid horror film – it’s a actual nightmare for H-1b employers and their H-1b beneficiaries.
As background, on September 19, 2025, Donald Trump issued a proclamation “Restriction on entry of sure non-immigrant employees”. See the connected scan of the Proclamation. President Trump decreed that new H-1bs filed on or after September 21, 2025 can be topic to the extra 100-grand payment. No authority, no regulation, simply the President’s Proclamation. On the time of this writing, two lawsuits had already been filed towards implementing the Proclamation. The proclamation has created numerous uncertainty and worry within the H-1b stakeholder neighborhood. The USCIS issued clarification or steering of that proclamation on Monday, October 20, 2025. In reviewing the USCIS steering, the next eventualities emerge:
The proclamation for the 100-grand payment applies to new H-1bs filed after 12:01 AM Japanese time on September 21, 2025, on behalf of beneficiaries who’re exterior america and shouldn’t have a legitimate H-1b visa.
Subsequently, an H-1b employer must pay the 100-grand payment if the employer:
- Recordsdata a brand new petition for a brand new H-1b classification
- Recordsdata on or after September 21, 2025
- For a beneficiary who’s exterior america
- Who doesn’t have already got a legitimate H-1b visa.
The USCIS steering clarifies that an H-1b petition (it doesn’t specify whether or not a brand new or extension petition) is filed on or after September 21, 2025, and that petition requests:
- A change of standing
- An extension of keep; or
- An modification to an present H-1b, AND
- The USCIS is NOT in a position to challenge the requested Change of Standing, Extension of Standing or approval of the amended petition, AND
- The alien departs the USA PRIOR to the USCIS’ determination on the petition, THEN
the 100-grand payment WILL apply.
The proclamation, says the USCIS, can even apply if a first-time, new H-1b beneficiary is contained in the USA and the H-1b petition that’s filed on or after September 21, 2025 requests:
- Consular notification;
- Port of entry notification; or
- Preflight inspection for an alien who’s already in america.
Now, to assist us wade by way of this H-1b Proclamation muck, I’ve connected the next paperwork:
- The Proclamation (trumpets, please)
- The H-1b clarification discover issued by the USCIS on October 20, 2025
- The I-129 kind instruction pages 5 and 6 (disregard the “Draft” discover on the pages – evidently the USCIS didn’t take away the discover after posting the directions)
- The I-129 kind itself, pages 2 and three.
Submitting a NEW H-1b for a first-time H-1b or somebody who had an H-1b prior to now, however is now on another standing:
Let’s get right down to the technical particulars: on web page 2 of kind I-129, have a look at Half 2, questions 2 and 4. Then please additionally see the connected directions for Half 2, questions 2 and 4.
As you possibly can see, if the petition is filed for “new employment”, Half 2, Query 2(a), then the choice for Half 2, Query 4 would most likely be the corresponding field (b). To verify every other field would very probably lead to a requirement by USCIS for the 100-grand payment.
Nonetheless, no matter the way you fill in Half 2, the 100-grand payment will nonetheless need to be paid except you additionally full Half 4, query 1, on web page 3, in a sure approach:
On the shape I-129, the petition for several types of nonimmigrant work visas, at Half 4, on web page 3 of the shape, “processing info”, query #1 reads:
“If a beneficiary or beneficiaries named in Half 3 is/are exterior america, or a requested extension of keep or change of standing can’t be granted, state the US Consulate or inspection facility you need notified of this petition is permitted.”
Sub-part (a) of Query 1 of Half 4 of the shape then goes on to ask the applicant to pick out the kind of workplace, from which the applicant can select “consulate”, “pre-flight inspection”, or “port of entry”. Sub-part (b) of query 1 then asks the applicant to record the workplace tackle the place the US Consulate, preflight inspection or port of entry is positioned, and sub-part (c) of query 1 asks the applicant to establish the US state or overseas nation the place the beneficiary shall be presenting himself or herself for grant of journey permission, visa or entry to america as an H-1b.
What if the H-1b petition was filed or permitted earlier than September 21, 2025?
Please observe that any alien who doesn’t have already got a legitimate, present H-1b visa and must reenter the USA after overseas journey might want to apply for a brand new H-1b visa. In the event that they have already got the USCIS-approved H-1b classification based mostly on an software filed earlier than September 21, 2025, then they’re most likely not topic to the 100-grand payment.
The proclamation, nonetheless, doesn’t forestall the holder of a present H-1b visa or every other alien beneficiary (say an H-4 dependent) following petition approval from touring out and in of america offered the petition for H-1b classification was submitted earlier than September 21, 2025.
What if the petition is filed on or after September 21, 2025 for an alien throughout the USA?
A vital query can also be answered by the USCIS clarification: if a petition is filed for an alien beneficiary who’s contained in the USA after September 21, 2025, and the alien seeks modification, change of standing, or extension of keep and the alien is inside america when the petition is permitted, then the petitioner is not going to be thought of to be topic to the extra 100-grand fee both on the time of software or if the alien beneficiary subsequently leaves america and applies for a visa based mostly on the permitted petition after which reenters america on the brand new H-1b visa. It is a essential level.
Conversely, the USCIS additionally goes on to state that, if an H-1b petition which additionally requests a change of standing or modification or extension of keep can not be granted by USCIS, then the proclamation will apply and the fee should be made in keeping with the directions which shall be offered by the USCIS. This is applicable solely to functions filed on or after September 21, 2025.
How one can pay the 100-grand payment:
The USCIS has decreed that the 100-grand payment should be paid utilizing pay.gov, and gives a hyperlink to the webpage to provoke fee. Per the USCIS, fee should be made previous to submitting the H-1b petition.
Exception to the 100-grand payment:
Whereas there’s an exception to paying the 100-grand payment, the USCIS clearly states that such an exception shall be granted solely in “terribly uncommon circumstance”. Such circumstance requires that the DHS secretary makes a dedication that the H-1b beneficiary’s presence in america
(1) is within the nationwide curiosity,
(2) that no American employee is ready to fill the function,
(3) that the beneficiary doesn’t symbolize a risk to america’ safety or welfare, and
(4) that requiring the petitioner to pay the 100-grand payment would considerably undermine the pursuits of america.
Petitioners who consider that their software would fulfill this requirement might search an exception by emailing the request and all supporting proof to H1bexceptions@hq.dhs.gov.
Let’s now take up some hypothetical instances:
Hypothetical primary:
Say you’re an alien in america and you have already got an H-1b petition permitted, which was filed earlier than September 21, 2025, however you shouldn’t have a visa to return to america after overseas journey. Will the H-1b payment apply to you?
No. Pursuant to the USCIS clarification, the $100,000 payment is not going to apply to you.
Hypothetical quantity two:
Suppose you’re an H-1b worker who already has a petition for H-1b classification permitted, and your employer is now in search of an extension in your behalf which goes to be filed on or after September 21, 2025. Does the H-1b payment apply?
Sure, if the petition is filed on or after September 21, 2025 and it requests a change of standing, and modification, or extension of keep, and the USCIS determines that the beneficiary isn’t eligible for a change of standing, denies the modification requested, or denies the extension of keep throughout the USA, then the proclamation will apply and fee should be made. Presumably not finishing Half 4, query 1 as defined beneath (see reply to Hypothetical quantity three) might take away such software from the duty to pay the 100-grand payment.
Hypothetical quantity three:
What a few beneficiary who doesn’t maintain a present, legitimate H-1b visa, and whose employer information the H-1b petition after September 21, 2025?
There are two choices on this occasion:
- Alien beneficiary within the USA:
If the petition is filed for an alien who’s already in america, the petition is not going to require the extra $100,000 fee. Nonetheless, in an effort to guarantee that’s the case, the petitioner should not search consular processing, approval at port of entry, or preflight inspection for the beneficiary. The petition should merely be for a change of standing. The field that must be checked on the H-1b software, kind I-129, is a component 2 query 2 field (a); the subsequent field in the identical part is web page 2 half 4 field (b). On web page 3 of kind I-129, of half 4, the applying fields at query 1 (a), (b) and (c) ought to all be left clean.
My technique can be that the petitioner or their legal professional file an in depth letter to accompany the petition, which explains the proclamation, the USCIS steering, and addresses the problem of why Half 4, Query 1 has been left clean.
Per the USCIS clarifications, a beneficiary who’s within the USA,
- for whom a H-1b petition is filed on or after September 21, 2025,
- who DOES NOT request port of entry or consular processing (ie, leaves Half 4, query 1 (a), (b) or (c) clean)
- and is permitted;
is not going to be topic to the 100-grand payment if she or he leaves the USA and applies for a H-1b visa to reenter.
Now, if the USCIS decides that Half 4, query 1 should be answered earlier than it’s going to adjudicate the petition and due to this fact calls for the 100-grand payment earlier than the petition will be determined, which may be the top of that petition, as a result of the employer will most likely not want to proceed additional. However that’s, in fact, left to the person employer.
- Alien beneficiary exterior the USA:
The second possibility is within the case of a beneficiary who’s exterior america and whose employer now petitions for an H-1b visa to permit that alien to enter and work in america. If that petition is filed after September 21, 2025, that petition will entice the $100,000 payment. Until in fact, the one (very restricted) exception defined above is granted by the Secretary of the Division of Homeland Safety.
Hypothetical quantity 4:
“I’m going to be eligible for the H-1b lottery in March 2026. What if I’m chosen? Will my employer have to pay the 100-grand payment?”
In case you are within the USA, your employer will more than likely, not need to pay the 100-grand payment, except you choose the choice below Half 4, Question1 (a), (b), and (c). As I’ve defined above an software for a change of standing, absent any request for consular or Port of Entry processing isn’t topic to the 100-grand payment. Nonetheless, in case your employer’s petition in your behalf is permitted, and also you select to go away the USA in some unspecified time in the future after approval, you’ll need a H-1b visa to reenter, and we have no idea the foundations that may apply at the moment.
Additional Developments and conclusion:
Probably, further clarifications will come out from the USCIS and maybe the US Division of State may shed additional gentle on this onerous proclamation. To date, indications are that potential alien employees in america will be capable to search H-1b standing by way of their employers, offered they’re prepared to forgo the flexibility to journey exterior america through the pendency of the H-1b approvals.
Please additionally observe that the proclamation is legitimate for just one 12 months (that’s, till 11:59 PM on September 20, 2026) except it’s prolonged. A federal courtroom may strike down the proclamation. There may be nonetheless so much that’s unknown right now. Therefore, it’s attainable that, if the proclamation isn’t renewed, that the H-1b employee could possibly journey exterior america after the proclamation has expired, and apply for an H-1b visa to reenter america with out having to pay the 100-grand payment.
As in all issues associated to immigration throughout this administration, please keep tuned for any additional developments. Notice that the above evaluation ought to NOT be construed as authorized recommendation in your particular scenario. Please seek the advice of a certified, skilled and competent immigration legal professional for particular authorized steering on the precise info of your case.
Click on right here for hyperlinks to the articles and varieties referenced within the article above:
© Farhad Sethna, Lawyer, 2025
Farhad Sethna has practiced regulation for over 30 years. He was awarded his JD in 1990 and his MBA in 1991, each from the College of Akron. Since 1996, he has additionally been an adjunct professor of Immigration Regulation on the College of Akron, College of Regulation, in Akron, Ohio, the place he wrote and continues to make use of his personal immigration textbook. Lawyer Sethna is a frequent speaker at Persevering with Authorized Training {and professional} growth seminars on varied immigration-related subjects. His apply is restricted to immigration and small enterprise. He has received awards for excellence in educating and for pro-bono service. With workplaces in Cuyahoga Falls, Ohio, Lawyer Sethna represents purchasers in all sorts of immigration instances earlier than federal businesses and the immigration courts nationwide. A personal pilot, it’s Farhad’s objective to fly to every of Ohio’s 88 county airports. Our quantity is: (330) 384-8000. Please ship your basic immigration inquiries to farhad@sethnalaw.com. We’ll attempt to reply as many questions as attainable.
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