USCIS Clarifies Which H-1B Situations Require the New $100,000 Fee

The US Citizenship and Immigration Services (USCIS) just issued guidance clarifying various aspects of the fee, including its applicability, how to pay it, and how to apply for an exception.

It DOES NOT apply to:

• Petitions filed before September 21.
• Employees traveling with an existing, valid H-1B visa.
• Employees applying for a visa outside the United States based upon a petition filed before September 21.
• Change of status, extension, amendment, and transfer petitions filed after September 20 where the employee is in the United States at the time of filing, and the change of status, extension, amendment, or transfer is approved. The fee will not apply at the petition filing stage and will not apply later when the employee travels outside the United States to apply for a visa based on that approved petition.

It DOES apply to:

• Any H-1B petition (including initial, change of status, extension, amendment, and transfer petitions) filed after September 20 where the employee is outside the United States at the time of filing.
• Any H-1B petition (including initial, change of status, extension, amendment, and transfer petitions) filed after September 20 where the petition requests consular notification, port of entry notification, or pre-flight inspection for the employee.
• Any H-1B petition (including initial, change of status, extension, amendment, and transfer petitions) filed after September 20 where the USCIS determines that the employee is ineligible for a change of status, amendment or extension of stay (e.g., is not in a valid nonimmigrant visa status at the time of filing or if the alien departs the United States prior to adjudication of the change of status request). In this case, the USCIS will issue a decision containing instructions on how to pay the fee.
• Cap-subject and cap-exempt employers.

Paying the Fee

Employers must submit the required $100,000 payment using pay.gov, following these instructions.

Payment must be made prior to filing a petition with USCIS, and employers must submit with H-1B petitions with either (1) proof that the payment has been scheduled from pay.gov or (2) evidence of an exception from the $100,000 payment from the Secretary of Homeland Security.

Fee Exceptions

Exceptions to the $100,000 payment are granted by the Secretary of Homeland Security in the extraordinarily rare circumstance where the secretary has determined that the employee’s H-1B work in the United States is in the national interest, that no American worker is available to fill the role, that the employee does not pose a threat to the security or welfare of the United States, and that requiring the employer to make the payment on the employee’s behalf would significantly undermine the interests of the United States. Employers are responsible for filing for the exception on their employee’s behalf, and they do so by sending their request and all supporting evidence here.

Open Question

Whether the Fee applies to H-1B1’s from Chile and Singapore. The US Embassy in Singapore posted on social media that it did not, but we are waiting for a more formal announcement.

With this guidance, many employers can file H-1B petitions without triggering the $100,000 fee. Employers can file to change an employee into H-1B status (ex: from TN or F-1 status), extend their existing H-1B status, and transfer their H-1B from one employer to another without triggering the fee as long as the employee is in the United States at the time of filing and stays in the United States until the change of status, extension, or transfer is approved.

We are continuing to monitor the issue and will share any developments. In the meantime, please reach out with any questions to Berin S. Romagnolo or Nancy A. Noonan.