On Saturday night, the White House announced the recently introduced $100,000 H-1B fee will only apply to new H-1B petitions filed on or after Sept. 21. This means existing H-1B workers, including those seeking extensions, amendments or transfers, will not be subject to this fee. This clarification provides significant relief for employers and foreign national employees currently maintaining valid H-1B status.
Clarification on Scope of $100,000 Fee
- The new $100,000 fee became effective on Sept. 21, but it applies only to new petitions, including:
- Initial H-1B filings for new employees,
- Change of status requests into H-1B, and
- Petitions filed for beneficiaries selected in the 2026 cap lottery.
- The fee does not apply retroactively to petitions filed before this date.
- The White House has stated this is a one-time per new petition fee, not an annual charge.
Who is NOT Subject to the Fee
- Current H-1B employees presently in the U.S.
- Current holders of valid H-1B visas traveling to and from the U.S.
- Petitions to renew H-1B status.
What Remains Unclear
- Neither the White House nor the Department of Homeland Security (DHS) have addressed whether cap-exempt entities (such as colleges, many hospitals, etc.) are exempt from the fee.
- Under the terms of the proclamation, DHS may exempt employers or industries "in the national interest." DHS has not publicly announced any such exemptions yet. During the pandemic, the Trump administration exempted most healthcare workers from immigration restrictions, and it may exempt such employers from the $100,000 fee.
What Employers Should Do Now
- Continue normal processes for current H-1B staff — routine extensions and travel plans remain unchanged.
- Monitor for further guidance and potential litigation as implementation details may evolve quickly. Expect potential legal challenges to this fee, which may impact its enforcement or scope.
- Review upcoming hiring plans, especially for fiscal year 2026 cap season filings.
- Evaluate alternative visa categories such as L-1, O-1, TN or E-3 where appropriate to avoid the $100,000 fee.
The White House’s clarification ensures existing H-1B employees are protected from this unprecedented fee. However, the cost of hiring new H-1B workers has increased dramatically, and proactive planning will be essential to minimize business disruption. If you would like a tailored strategy session to discuss how this change may impact your organization’s immigration program, please contact Sarah Bileti, Daniel Persinger, Christopher LeClair or your Warner attorney.
