Sean Michaels
Nov 1, 2025
Who must pay, who is exempt, how to file correctly, and what risks employers and foreign workers face under the new USCIS rule.
Updated USCIS Guidance on the New $100,000 H-1B Posting Fee
In late 2025, USCIS released additional guidance explaining how the new $100,000 H-1B visa posting fee must be applied. The rule has already caused significant confusion and concern among employers, international workers, HR teams, and immigration attorneys.
This fee applies to specific applicants for H-1B visas and may dramatically increase the cost of hiring foreign talent. Below is a full breakdown of when the fee applies, when it does NOT apply, and what uncertainties remain.
1. When the $100,000 H-1B Posting Fee Is Required
The fee applies to any H-1B petition filed on or after September 21, 2025, if any of the following conditions are true:
✔ 1) The beneficiary is outside the United States
And does not have a valid H-1B visa.
✔ 2) The petition requests consular notification
Meaning the beneficiary plans to obtain a visa abroad after approval.
✔ 3) USCIS approves the petition but denies the status change or extension
This forces the beneficiary to obtain a visa abroad — triggering the fee.
✔ 4) The beneficiary leaves the U.S. while the petition is pending
And intends to reenter with an H-1B visa through consular processing.
2. When the Fee Does NOT Apply
USCIS confirmed that the fee is not required:
❌ 1) For petitions filed before 12:01 AM ET, September 21, 2025
Exact timing matters.
❌ 2) For petitions requesting and receiving:
change of status
extension of status
amendments
❌ 3) For visas issued based on approved change/extension/amendment
Even if the applicant later travels abroad.
❌ 4) For entry on a “valid H-1B visa”
However, USCIS has not clarified what exactly “valid” means.
3. Key Ambiguities and Legal Concerns
Two major problems worry employers:
❓ Can USCIS approve the H-1B petition but deny the status change?
If so, the worker must go abroad to obtain the visa — and the $100,000 fee becomes mandatory.
❓ What does “valid H-1B visa” mean?
Is it:
a visa that has not expired?
a visa previously used for entry?
a visa issued based on an amendment?
USCIS has provided no official interpretation.
4. How to Pay the New Fee
Payment must be made online only through www.pay.gov.USCIS will reject any H-1B petition requiring the fee if:
payment receipt is missing
payment fails
the petitioner incorrectly assumes they are exempt
5. “National Interest” Exemptions — Possible in Theory, Unclear in Practice
To qualify for a national-interest exemption, the petitioner must prove:
✔ 1) The worker’s presence in H-1B status serves U.S. national interests
✔ 2) No U.S. workers are available to fill the position
✔ 3) Paying the fee would harm U.S. economic or security interests
✔ 4) The worker poses no risk to U.S. security
There is no guidance from USCIS explaining acceptable evidence or criteria.Most attorneys consider the exemption “nearly impossible to prove.”
6. Real-World Impact of the New Fee
For employers:
much higher H-1B costs
reduced ability to hire global talent
increased administrative burden
For workers:
higher risk of denials
more consular processing
fewer opportunities for small businesses to hire foreign specialists