Who Is Subject to the $100,000 H-1B Fee?
In late September, U.S. Citizenship and Immigration Services (USCIS) released new guidance implementing President Trump’s September 19 Presidential Proclamation, which introduces a $100,000 fee for U.S. employers sponsoring H-1B specialty occupation workers for admission or reentry into the United States. Effective September 21, the proclamation marks one of the most significant policy changes in the H-1B visa program in decades. While agencies had issued preliminary guidance, many employers and professionals had questions about real-world application. The updated USCIS guidance clarifies much of the implementation process, though some uncertainties remain as litigation progresses. For U.S. companies that rely on highly skilled foreign talent and for professionals seeking employment in the U.S., understanding this rule is essential to avoid disruptions during the FY 2027 H-1B cap season and beyond.
Under the proclamation, U.S. employers must pay a $100,000 supplemental fee when sponsoring a foreign national for H-1B status that involves admission or reentry into the country. Petitions filed as changes of status within the United States are generally exempt upon initial filing. However, if USCIS determines that the beneficiary was not maintaining valid status, the agency may require the employer either to pay the fee or obtain a National Interest Exception (NIE) before approval.
In summary:
- Consular processing or international travel = fee required
- Change of status (if status valid) = fee exempt
- This distinction is critical for employers managing workers transitioning from F-1, TN, or L-1 visas. Companies in California or with operations in Mexico and cross-border regions must carefully confirm lawful status continuity before filing.
- Requesting a National Interest Exception (NIE)
- USCIS has confirmed that exceptions to the $100,000 fee will be granted only in extraordinarily rare circumstances. An employer seeking an NIE must prove that:
- The employee’s H-1B presence is in the national interest of the United States.
- No qualified U.S. worker is available for the position.
- The foreign national poses no security or welfare risk.
- Paying the $100,000 fee would significantly harm U.S. interests.
Currently, USCIS offers no company-wide exceptions — only case-by-case requests via the Department of Homeland Security (DHS). Employers should work with an immigration attorney experienced in business visas to document economic impact, national contribution, and urgency.
Understanding the “National Interest” Standard
While the phrase “national interest” may sound familiar to those with EB-2 NIW (National Interest Waiver) experience, the H-1B NIE threshold is far more demanding. Employers must prove not only that the employee contributes to a vital sector such as semiconductors, infrastructure, or artificial intelligence, but also that paying the $100,000 fee itself would undermine the U.S. national interest. This sets a high evidentiary bar. Documentation must show economic necessity, specialized expertise, or projects of national importance. Businesses in California, Texas, and border cities like Tijuana and Juárez may need tailored strategies to demonstrate regional and cross-border economic benefits.
Impact on F-1 Students and Recent Graduates
The proclamation particularly affects F-1 students transitioning to H-1B through the annual lottery. According to USCIS, petitions for F-1 students seeking a change of status are not subject to the fee upon filing. However, if the student fails to maintain lawful status, for example, by exceeding the OPT unemployment period, neglecting SEVIS updates, or traveling abroad during processing, USCIS will deny the change of status. In those cases, the employer must either pay the $100,000 fee or secure an approved NIE before approval. To prevent this outcome, students must maintain status meticulously, and employers — including those in California or border regions like Tijuana and San Diego — should coordinate closely with immigration counsel before travel or reentry.
- How the Rule Affects FY 2027 H-1B Cap Filings
- USCIS clarified the following for the upcoming FY 2027 H-1B cap:
- Change of status cases (in valid status): may proceed without the $100,000 fee.
- Consular notification cases: require fee payment or approved NIE.
- Employers filing for workers abroad or with visa gaps must plan for potential additional costs and prepare NIE documentation early.
Litigation and Unresolved Issues
Two federal lawsuits have already been filed challenging the proclamation under the Administrative Procedure Act (APA). Both seek injunctions to block enforcement. Although no temporary stays have been issued, litigation updates may alter compliance timelines. Until further notice, the $100,000 fee remains in effect, and USCIS may issue Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs) for petitions missing payment proof or NIE approval.
- Steps Employers Should Take Now
- To minimize risk and ensure compliance:
- Review all current or upcoming H-1B cases for potential exposure.
- Verify each employee’s valid immigration status and documentation.
- Plan early for FY 2027 cap filings, especially for recent graduates or employees abroad.
- Assess whether a National Interest Exception is viable with your immigration counsel.
- Monitor USCIS and court updates, as procedural adjustments may occur rapidly.
- Employers including those in California, Texas, or the U.S.–Mexico corridor should prepare internal checklists for workforce mobility and compliance under the new proclamation.
Conclusion
The $100,000 H-1B fee marks a profound shift in U.S. immigration policy, with lasting implications for employers, startups, and skilled professionals. While USCIS guidance offers clarity, implementation remains complex. Proactive strategy, thorough documentation, and qualified legal guidance are now essential.
At Carla Caballero Immigration Law P.C., our immigration attorneys in California help companies and professionals across Tijuana, San Diego, Juárez, and throughout Mexico navigate evolving H-1B and employment-based visa requirements — from compliance and filings to National Interest Exceptions and litigation updates. Contact us today to develop a custom strategy for your FY 2027 H-1B filings and protect your organization’s access to international talent in the United States.
