The $100,000 H-1B Fee: Rules, Payment Process, and Exceptions in 2026

The Presidential Proclamation signed on September 19, 2025, effective at 12:01 a.m. EDT on the 21st, imposed one of the most aggressive restrictions ever placed on the H-1B program: an additional $100,000 fee on certain new petitions. The weeks that followed were filled with uncertainty, as employers and immigration attorneys halted filings while awaiting formal USCIS guidance. On October 20, 2025, the agency published key clarifications that define the scope of the measure, describe the Pay.gov payment workflow, and open a narrow window for national interest exceptions. The landscape is further complicated by ongoing federal litigation challenging the legal basis of the Proclamation.

Who Is Subject to the Fee

The $100,000 fee applies to new H-1B petitions filed on or after September 21, 2025, where the beneficiary falls into one of two categories.

First category: the beneficiary is outside the United States and does not hold a valid H-1B visa. Second category: the beneficiary is inside the United States, but the petition requests consular notification, port of entry notification, or pre-flight inspection.

The clarification that brought the most relief to employers and students concerned change of status petitions. USCIS confirmed that the Proclamation does not apply to petitions filed within the regulatory timeframe requesting an amendment, change of status, or extension of stay for a foreign national physically present in the United States, provided the petition is approved. This is the typical scenario for an F-1 student on OPT who wins the H-1B lottery, or a J-1 trainee transitioning to sponsored employment. If the petition is denied due to ineligibility — such as a loss of status or travel abroad before a decision is issued — the Proclamation fee applies.

How Payment Works

Payment must be made before filing the I-129 petition and exclusively through the federal Pay.gov portal, using the specific form created for this program. The petitioner must attach to the USCIS filing proof that payment was scheduled — or documentary evidence that an exception applies. Petitions subject to the rule that are filed without this documentation will be rejected.

The portal collects basic beneficiary information and offers four ACH debit options: business checking, business savings, personal checking, and personal savings. Credit cards are not accepted for this transaction.

National Interest Exception

The Proclamation includes an exception pathway, but USCIS made clear it applies only in extraordinarily rare circumstances. Four cumulative requirements must be demonstrated.

First, the beneficiary’s presence as an H-1B worker serves the national interest of the United States. Second, no American worker is available to fill the position. Third, the beneficiary does not pose a threat to the security or welfare of the United States. Fourth, requiring the petitioning employer to pay the fee would significantly harm U.S. interests.

USCIS has not yet published objective criteria comparable to those used for EB-2 NIW. The agency has opened the [email protected] channel to receive requests accompanied by full supporting evidence. Without published evaluation standards, the recommended strategy for employers considering this route is to build a record similar to an EB-2 NIW petition: letters from industry leaders, documentation of unsuccessful recruitment of American candidates, market data on occupational shortages, and an economic or strategic impact analysis.

Litigation Status

Two federal lawsuits have been filed challenging the legality of the Proclamation, alleging — among other arguments — that the Executive Branch lacks authority to impose a fee of this magnitude without Congressional authorization, and that the measure violates the Administrative Procedure Act. Decisions at any stage could alter the landscape with little notice, including potential injunctions. Many employers have chosen to delay filings while the outcome remains uncertain, but that delay competes with OPT expiration dates, status deadlines, and production timelines.

Operational Recommendations

For any H-1B petition in the pipeline, the first step is to assess the beneficiary’s current status and location to determine whether the fee applies. Beneficiaries in the United States with a valid change of status request should remain in the country until a decision is issued, avoiding international travel that could disqualify the exemption.

Employer budgets must account for the $100,000 impact per affected hire, in addition to standard I-129 fees (base filing fee of $780; ACWIA training fee of $750 for employers with 25 or fewer employees or $1,500 for larger employers; $500 fraud prevention fee for new H-1B filings), optional premium processing of $2,805, and legal costs. Employers with robust sponsorship programs may need to revisit internal eligibility and relocation policies.

It is also essential to allow time for the Pay.gov transaction to process before submitting the petition, as evidence of scheduled payment is a mandatory component of the filing package.

Implications for Brazilian Professionals

A Brazilian national outside the United States who relies exclusively on the H-1B to enter the country now faces a prohibitive financial barrier, except in the rare cases where an employer agrees to absorb the cost. For F-1 or J-1 students already in the U.S., maintaining valid status without traveling abroad becomes even more critical to qualify for the change of status exemption.

Highly qualified professionals should evaluate their alternatives. The EB-2 NIW bypasses the H-1B burden and grants permanent residence without a job offer. The O-1, for individuals with extraordinary ability, and the L-1, for intracompany transfers, also fall outside the Proclamation’s scope, as each operates under its own separate framework. The right path depends on the individual’s academic background, professional profile, and access to the required corporate structure.

Ongoing Monitoring

As the Department of Homeland Security and USCIS continue to issue supplemental guidance, the rules may shift through new administrative interpretations, court rulings, or executive action. Employers and applicants should monitor the official USCIS website, the Federal Register, and the progress of active litigation. The H-1B cap lottery for the next fiscal year will require early decisions on who to register, given the possibility that the regulatory landscape could change between March and April.

Victoria Harper

Editor-in-Chief

Meet the author

Leading journalism and editorial content at Visto n’ Visa, Victoria helps make immigration topics clear, trustworthy, and easy to understand. Her focus is on delivering useful, human, and relevant content for people exploring new paths abroad.