The $100,000 H-1B Fee: What It Is, Who Pays, and Where It's Going

What the proclamation actually does

On September 19, 2025, the President issued Proclamation 10880, "Restriction on Entry of Certain Nonimmigrant Workers." The substantive change took effect at 12:01 a.m. Eastern on September 21, 2025: any new H-1B petition filed at or after that moment must be accompanied by a $100,000 supplemental payment as a condition of approval. USCIS published implementation guidance on October 20, 2025, after roughly four weeks of confusion about whether the fee applied to extensions, change-of-status filings, and beneficiaries who were already in the country.

The fee is not framed as a filing fee in the conventional sense. It is structured as an entry restriction enforced through the petition process — a payment that must be tendered before USCIS will adjudicate the petition for a beneficiary who is not already subject to one of the exemptions described below. The distinction matters for both legal and practical reasons. Legally, framing the requirement as an exercise of the President's INA § 212(f) authority is what the District Court relied on in upholding it in December. Practically, it means the fee follows the petition rather than the worker, and a single beneficiary may be subject to it for one petition but not another depending on how and when the case is filed.

Who has to pay — and who does not

The October USCIS guidance clarified four exemption categories that have become the operative framework for cap-subject and cap-exempt sponsorship planning:

• Petitions filed before September 21, 2025 — Any petition that USCIS received before the effective moment of the proclamation is not subject to the fee, regardless of when it is adjudicated. This includes the FY 2026 cap-subject petitions filed in April 2025.
• Previously issued, currently valid H-1B visas — A beneficiary who already holds an unexpired H-1B visa stamp may continue to use that stamp for entry without triggering the fee. New petitions for the same beneficiary remain subject to analysis under the other exemptions.
• Extensions, amendments, and change-of-status filings for beneficiaries already in the United States — A petition filed at or after the effective date that requests an extension of stay, an amendment of an existing approval, or a change of status for someone physically present in the US is not subject to the fee. The beneficiary may subsequently travel abroad and apply for a visa stamp based on the approved petition without retroactively owing the payment.
• National interest exception — USCIS has limited this category to what it calls "extraordinarily rare" cases. The agency applies a four-part test requiring that the beneficiary's presence serves the national interest, that no US worker is reasonably available, that the individual poses no security or welfare risk, and that requiring the fee would significantly undermine US interests. The first eight months of operation have produced very few public examples of an exception being granted.

The exemption for in-country extensions and change-of-status filings is the practical center of gravity for most employer immigration programs. A petition supporting an OPT-to-H-1B change of status for a beneficiary in F-1 status, or a routine three-year H-1B extension for an existing employee, is filed without the $100,000 supplement. The fee bites when a new petition supports a beneficiary who is outside the United States — including most consular-processed first-time H-1Bs for workers being recruited from abroad.

Where the litigation stands

Three lawsuits have been filed challenging the proclamation. The first to produce a ruling was U.S. Chamber of Commerce et al. v. Trump, decided by the U.S. District Court for the District of Columbia on December 23, 2025. The court rejected the plaintiffs' arguments that the proclamation exceeded the President's INA § 212(f) authority and that the implementing process violated the Administrative Procedure Act. The fee was left in effect.

The plaintiffs appealed immediately. On January 5, 2026, the U.S. Court of Appeals for the D.C. Circuit granted the motion to expedite. Briefing concluded in late January, oral argument was held in February, and a decision is expected at any point during this calendar quarter. Two parallel cases remain pending — one in the Northern District of California brought by Global Nurse Force and a coalition of labor organizations, and one in the District of Massachusetts brought by twenty state attorneys general. Neither of those courts has set an aggressive schedule, but a contrary ruling from either would create a circuit split that would substantially raise the probability of Supreme Court review.

For planning purposes, the fee should be treated as in effect for the remainder of 2026. Even a favorable D.C. Circuit ruling would likely be followed by a stay pending Supreme Court review. Employers structuring sponsorship today should assume the cost applies to any non-exempt petition filed in the foreseeable future.

The September 2026 sunset

The proclamation contains its own expiration clause: absent an extension, the entry restriction terminates twelve months after the effective date — 12:01 a.m. Eastern on September 21, 2026. The administration has neither confirmed nor ruled out an extension. The political signaling has been mixed, but the operative legal reality is that the proclamation expires by its own terms unless renewed.

A second proclamation extending the restriction would face fresh APA challenges and would arrive in a different legal posture than the original. Employers should not bank on the sunset, but they should be aware of it. A petition strategy that defers a new-employee filing from August to October 2026 — if the role can absorb the delay — may avoid the fee entirely if no extension is issued. This is not a recommendation to wait. It is a factor to weigh when the timing is flexible and the cost difference is material.

Strategic implications for employers

The fee has produced several observable shifts in how companies are using the H-1B program. For most employers, the practical effect has been a narrowing — H-1B is now reserved for roles where it is structurally necessary, and alternatives are being evaluated for roles where they previously were not.

• O-1A is absorbing more business and technical hires — For executives, founders, senior engineers, researchers, and other individuals with a documentable record of achievement, O-1A is now the preferred pathway. It carries no proclamation fee, is not cap-subject, and supports premium processing in fifteen business days. Building the O-1A record takes longer than filing an H-1B, but the cost arithmetic now favors the investment.
• L-1 is being used more aggressively where it fits — Multinational employers with overseas operations are routing more transfers through L-1A and L-1B classification. The proclamation does not apply to L petitions. For companies with a meaningful international footprint, this is the cleanest alternative for transferring known talent into the US.
• Cap-exempt sponsorship has become more attractive — H-1B petitions filed by institutions of higher education, affiliated nonprofit research organizations, and qualifying government research entities remain cap-exempt and are not subject to the fee. Joint-employment arrangements with cap-exempt sponsors are being revisited in industries where they were previously considered too cumbersome to set up.
• Initial hiring abroad followed by L-1 transfer — For startups and growth-stage companies hiring internationally, recruiting talent to overseas offices first and transferring them after the one-year qualifying period has become a more frequently chosen path than direct H-1B sponsorship from abroad.

What to do now

The proclamation has not made H-1B sponsorship impossible. It has made it expensive enough that the threshold question — is H-1B the right vehicle for this hire? — now produces a different answer in many cases that would previously have defaulted to H-1B without analysis. For roles where the individual qualifies for O-1A, the cost-adjusted choice is no longer close. For roles where L-1 is structurally available, the same is true. The H-1B remains the workhorse for cap-subject hires where no alternative fits, and for those cases the fee is now part of the budgeted cost of acquiring the worker.

The companies that have adapted well to the post-September environment are not the ones that argued the loudest against the fee. They are the ones that examined their sponsorship portfolio honestly, identified which roles had become uneconomic under H-1B, and rebuilt their hiring pipeline around the alternatives. The next four months — through the September sunset, the D.C. Circuit ruling, and the start of the FY 2028 cap planning cycle — will reward employers who have already done that work.