H-1B Visa Update: USCIS Issues Payment Instructions, Exceptions, & Exemptions

Following our original post last month, USCIS has updated its website issuing new guidance on October 20, 2025, implementing the Presidential Proclamation on the “Restriction on Entry of Certain Nonimmigrant Workers.”

The agency’s new announcement addresses when the $100,000 H-1B payment applies, how and when it must be submitted, and the narrow process for seeking an exception. It also offers, for the first time, a clarification narrowing which filings the Proclamation actually reaches.

USCIS clarified that, in most cases, the fee does not apply to individuals already in the United States who are changing, amending, or extending H-1B status.

Proclamation Application

According to USCIS, the $100,000 payment applies to new H-1B petitions filed on or after 12:01 a.m. (EST) on September 21, 2025, where the beneficiary is outside the United States and does not have a valid H-1B visa.

The payment also applies to petitions requesting consular notification, port-of-entry notification, or pre-flight inspection for a beneficiary physically present in the United States.

If a petition filed on or after that time requests a change of status, amendment, or extension of stay, and USCIS later determines that the individual was not in valid nonimmigrant status or departed the U.S. prior to adjudication, the payment must still be made under the Proclamation’s terms.

USCIS reiterated that the Proclamation does not apply to petitions filed before the effective date, to currently valid H-1B visas, or to travel and reentry by existing H-1B holders.

Payment Instructions on Pay.Gov

Petitioners must make the payment in advance of filing an H-1B petition, using pay.gov. USCIS requires proof that payment has been scheduled through pay.gov or evidence of an exception from the Secretary of Homeland Security to be submitted with the petition at the time of filing.

Exception Application Instructions

The update states that the Secretary of Homeland Security may grant a waiver only in an “extraordinarily rare circumstance” where the Secretary determines that:

1. The H-1B worker’s presence is in the national interest;
2. No qualified U.S. worker is available to fill the position;
3. The individual poses no threat to U.S. security or welfare; and
4. Requiring payment would significantly undermine U.S. interests.

Employers seeking an exception must email H1BExceptions@hq.dhs.gov with their request and all supporting evidence.

Notably, USCIS still has not issued any guidance describing the criteria for exemption from the fee, how these requests will be adjudicated, or the timeframe for response.

Lawsuit Update

Shortly after the Proclamation took effect, a coalition of plaintiffs including Global Nurse Force, faith-based and educational organizations, labor unions, and individual workers, filed a lawsuit against the Trump-Vance Administration, DHS, USCIS, CBP, and DOS, alleging that the Proclamation exceeds presidential authority and violates statutory fee and rulemaking requirements.

Following this most recent update, the plaintiffs issued a joint statement saying:

We are encouraged that the government appears to recognize the immediate harm this policy causes to workers already in the United States, including many of our members and employees. But this guidance is limited, unclear, and fails to fix the core problem: the Trump-Vance administration is still trying to impose a $100,000 price tag on immigration without authority from Congress. Our communities cannot plan around uncertainty, nor can we allow life-saving care, student learning, and scientific research to be held hostage to shifting, arbitrary rules. Our lawsuit will continue until the proclamation is blocked and the rule of law restored.

What This Means for Employers

At this time, employers filing H-1B petitions for workers outside the United States or requesting consular processing should prepare to submit the $100,000 payment and proof of transaction through pay.gov at the time of filing.

For now, the fee appears to be inapplicable to employers filing amendments, changes of status, or extensions for beneficiaries already in valid H-1B or other nonimmigrant status. The scope of this exception could change as litigation progresses and further DHS guidance is issued.

We will continue monitoring for any changes, including the development of a formal exception process and outcomes in the pending lawsuit.

About Our Author

Mary Kate Fernandez focuses her practice exclusively on business immigration, representing employers across a range of industries. With experience guiding clients through U.S. immigration regulations, she helps businesses sponsor and retain skilled talent from around the world. She also assists employers in addressing a wide range of employment issues related to immigration and international employment, ensuring they remain compliant with regulations. Fernandez has established contacts and experience liaising with the Department of Labor (DOL), U.S. Citizenship and Immigration Services (USCIS), U.S. Coast Guard (USCG), Department of State (DOS), and U.S. consulates worldwide. This network enables her to guide clients effectively through regulatory requirements across different jurisdictions.