By Cyrus D. Mehta and Kaitlyn Field*
In a prior weblog, we detailed Presidential Proclamation implementing a brand new $100,000 price that applies to sure H-1B staff. The preliminary Proclamation created concern and confusion for H-1B beneficiaries and U.S. employers alike, because it left unclear which sorts of H-1B petitions can be impacted. On October 20, 2025, USCIS issued steering stating that “for H-1B petitions topic to the Proclamation, petitioners should submit a duplicate of the proof of the fee from pay.gov or proof of an exception from the price from the Secretary of Homeland Safety on the time of submitting the H-1B petition. Petitions topic to the $100,000 fee which might be filed with out proof of fee or the grant of an exception will likely be denied.”
USCIS steering additionally clarifies that the Proclamation doesn’t apply to “any beforehand issued and at the moment legitimate H-1B visas”, “any petitions submitted previous to 12:01 a.m. jap daylight time on September 21, 2025”, and “doesn’t stop any holder of a present H-1B visa, or any alien beneficiary following petition approval, from touring out and in of the USA.” Furthermore, “[t]he Proclamation additionally doesn’t apply to a petition filed at or after 12:01 a.m. jap daylight time on September 21, 2025, that’s requesting an modification, change of standing, or extension of keep for an alien inside the USA the place the alien is granted such modification, change, or extension, and a beneficiary of an authorized petition “is not going to be thought of to be topic to the fee if she or he subsequently departs the USA and applies for a visa based mostly on the authorized petition and/or seeks to reenter the USA on a present H-1B visa.”
Ambiguity stays, nevertheless, during which classes of H-1B beneficiaries will likely be topic to the brand new price. For instance, even the up to date steering doesn’t deal with whether or not the price would apply if an H-1B modification or extension petition was filed on behalf of a noncitizen who was on a quick journey exterior the U.S. To make sure that they’re exempt from the Proclamation, nevertheless, beneficiaries caught on this state of affairs who’ve legitimate visas may merely journey again to the USA earlier than the H-1B petition is filed, a state of affairs during which the price is clearly inapplicable. Nonetheless, people who have been counted in opposition to the H-1B cap as a result of they have been terminated by their H-1B employer or have reached the six 12 months most in H-1B standing and are awaiting I-140 approval might now not have legitimate H-1B visas. If new H-1B petitions are filed on behalf of those people, it’s unclear whether or not the employer can be required to pay the $100,000 price.
The up to date steering additionally clarifies that if a petition filed at or after 12:01 a.m. jap daylight time on September 21, 2025, requests a change of standing or modification or extension of keep and USCIS determines that the alien is ineligible for a change of standing or an modification or extension of keep (e.g., will not be in a legitimate nonimmigrant visa standing or if the alien departs the USA previous to adjudication of a change of standing request), the Proclamation will apply and the fee should be paid based on the directions offered by USCIS. This might influence one whose H-1B extension or modification has been denied. If the employer information a brand new petition for consular processing in order that the beneficiary may journey abroad and apply for an H-1B visa stamp on the US Consulate, this petition would sadly be topic to the $100,000 price. However, if a movement to reopen or reconsideration is filed and the case will get efficiently reopened, the employer can keep away from the $100,000 price. In fact, there’s a variety of uncertainty with a movement to reopen and rethink with respect to the time it can take and the result. If the movement to reopen or rethink fails, the H-1B employee may also have accrued greater than 6 months of illegal presence and would face the three or 10 12 months bar to reentry.
USCIS’ up to date steering additionally doesn’t point out whether or not the price applies to H-1B1 visas for Chilean and Singaporean nationals, though the U.S. Embassy of Singapore acknowledged in a Fb put up on October 29, 2025 that the Proclamation “doesn’t apply to the H-1B1 visa for Singaporean residents. There isn’t a change to the H-1B1 course of right now.”
Even when the scope of the Proclamation has been clarified since its promulgation apply to a narrower set of H-1B beneficiaries than initially seemed to be impacted, the brand new price will nonetheless have a devastating influence on U.S. firms who depend on H-1B staff. It’s clear that the price will apply to new H-1B petitions filed on behalf of candidates chosen in subsequent 12 months’s H-1B cap. Nonetheless, if such candidates are within the US in a standing similar to F-1, and get chosen beneath the H-1B lottery, they shouldn’t be topic to the $100,000 price. However, if such potential candidates enter the US in a nonimmigrant standing to attempt their luck at altering standing to H-1B within the subsequent March 2026 lottery to keep away from the $100,00 price, the USCIS may doubtlessly nonetheless use its discretion in denying the change of standing. Worse nonetheless, the potential candidate can be topic to expeditious elimination on the port of entry.
Given how unaffordable this price will likely be for a lot of, it’s anticipated that quite a lot of U.S. employers will likely be compelled to cease submitting new H-1B petitions altogether. Firms like Cognizant, Tata Consultancy Companies, and Walmart, which historically employed massive numbers of H-1B staff have already signaled that they are going to restrict the variety of H-1B petitions that they file going ahead. Even cap exempt employers similar to universities and non-profits affiliated to universities or non-profit analysis organizations will likely be topic to the $100,000 price if the candidate can’t fall beneath any of the exceptions set forth within the October 2, 2025 clarification.
After the October 20, 2025 clarification, many within the immigration neighborhood expressed aid that this steering had blunted the influence of the Proclamation, however the clarification does not likely deal with the truth that the Proclamation will proceed to use to many H-1B circumstances with a number of exceptions. As we’ve got acknowledged in our prior weblog, this Proclamation has been issued in violation of the INA, and there are two courtroom challenges already to the Proclamation, and we hope that the courts will strike it down very quickly.
*Kaitlyn Field is a Associate at Cyrus D. Mehta & Companions PLLC.
