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IMMIGRATION NOVEMBER 07, 2025 | The Indian Eye 37

USCIS’s October 20 Clarification Will Not

Make the $100,000 H-1B Fee Disappear

BY CYRUS D. MEHTA AND does not apply to “any previ- Ambiguity remains, how- pact one whose H-1B exten- er hand, if such prospective
KAITLYN BOX* ously issued and currently val- ever, in which categories of sion or amendment has been candidates enter the US in
id H-1B visas”, “any petitions H-1B beneficiaries will be denied. If the employer files a nonimmigrant status to try
n a prior blog, we detailed submitted prior to 12:01 a.m. subject to the new fee. For a new petition for consular their luck at changing status to
Presidential Proclama- eastern daylight time on Sep- example, even the updated processing so that the benefi- H-1B in the next March 2026
Ition implementing a new tember 21, 2025”, and “does guidance does not address ciary could travel overseas and lottery to avoid the $100,00
$100,000 fee that applies to not prevent any holder of a whether the fee would apply apply for an H-1B visa stamp fee, the USCIS could poten-
certain H-1B workers. The current H-1B visa, or any alien if an H-1B amendment or ex- at the US Consulate, this pe- tially still use its discretion in
initial Proclamation created beneficiary following petition tension petition was filed on tition would unfortunately be denying the change of status.
concern and confusion for approval, from traveling in behalf of a noncitizen who was subject to the $100,000 fee. On Worse still, the prospective
H-1B beneficiaries and U.S. and out of the United States.” on a brief trip outside the U.S. the other hand, if a motion to candidate would be subject
employers alike, as it left un- Moreover, “[t]he Proclama- To ensure that they are ex- reopen or reconsideration is to expeditious removal at the
clear which types of H-1B tion also does not apply to a empt from the Proclamation, filed and the case gets success- port of entry.
petitions would be impacted. petition filed at or after 12:01 however, beneficiaries caught fully reopened, the employer Given how unaffordable
On October 20, 2025, USCIS a.m. eastern daylight time on in this situation who have valid can avoid the $100,000 fee. Of this fee will be for many, it is
issued guidance stating that September 21, 2025, that is visas could simply travel back course, there is a lot of uncer- anticipated that a number of
“for H-1B petitions subject requesting an amendment, to the United States before tainty with a motion to reopen U.S. employers will be forced
to the Proclamation, petition- change of status, or extension the H-1B petition is filed, a and reconsider with respect to to stop filing new H-1B peti-
ers must submit a copy of the of stay for an alien inside the scenario in which the fee is the time it will take and the tions altogether. Companies
proof of the payment from United States where the alien clearly inapplicable. However, outcome. If the motion to re- like Cognizant, Tata Consul-
pay.gov or evidence of an ex- is granted such amendment, individuals who were count- open or reconsider fails, the tancy Services, and Walmart,
ception from the fee from the change, or extension, and a ed against the H-1B cap be- H-1B worker might also have which traditionally employed
Secretary of Homeland Se- beneficiary of an approved pe- cause they were terminated by accrued more than 6 months large numbers of H-1B work-
curity at the time of filing the tition “will not be considered their H-1B employer or have of unlawful presence and ers have already signaled that
H-1B petition. Petitions sub- to be subject to the payment if reached the six year maximum would face the 3 or 10 year bar they will limit the number
ject to the $100,000 payment he or she subsequently departs in H-1B status and are await- to reentry. of H-1B petitions that they
that are filed without evidence the United States and applies ing I-140 approval may no USCIS’ updated guidance file going forward. Even cap
of payment or the grant of an for a visa based on the ap- longer have valid H-1B visas. also does not indicate whether exempt employers such as
exception will be denied.” proved petition and/or seeks If new H-1B petitions are filed the fee applies to H-1B1 visas universities and non-profits
USCIS guidance also to reenter the United States on behalf of these individuals, for Chilean and Singaporean affiliated to universities or
clarifies that the Proclamation on a current H-1B visa.” it is unclear whether the em- nationals, although the U.S. non-profit research organi-
ployer would be required Embassy of Singapore stated zations will be subject to the
to pay the $100,000 fee. in a Facebook post on October $100,000 fee if the candidate
The updated guid- 29, 2025 that the Proclamation cannot fall under any of the
ance also clarifies that “does not apply to the H-1B1 exceptions set forth in the Oc-
if a petition filed at or visa for Singaporean citizens. tober 2, 2025 clarification.
after 12:01 a.m. eastern There is no change to the After the October 20,
daylight time on Septem- H-1B1 process at this time.” 2025 clarification, many in
ber 21, 2025, requests Even if the scope of the the immigration community
a change of status or Proclamation has been clari- expressed relief that this guid-
amendment or extension fied since its promulgation ap- ance had blunted the impact
of stay and USCIS de- ply to a narrower set of H-1B of the Proclamation, but the
termines that the alien is beneficiaries than initially clarification does not really
ineligible for a change of appeared to be impacted, the address the fact that the Proc-
status or an amendment new fee will nonetheless have lamation will continue to ap-
or extension of stay (e.g., a devastating impact on U.S. ply to many H-1B cases with
is not in a valid nonim- companies who rely on H-1B a few exceptions. As we have
migrant visa status or workers. It is clear that the fee stated in our prior blog, this
if the alien departs the will apply to new H-1B peti- Proclamation has been issued
United States prior to tions filed on behalf of candi- in violation of the INA, and
adjudication of a change dates selected in next year’s there are two court challenges
of status request), the H-1B cap. However, if such already to the Proclamation,
Proclamation will apply candidates are in the US in a and we hope that the courts
and the payment must status such as F-1, and get se- will strike it down very soon.
be paid according to the lected under the H-1B lottery, *Kaitlyn Box is a Partner at Cyrus
instructions provided by they should not be subject to
USCIS. This could im- the $100,000 fee. On the oth- D. Mehta & Partners PLLC.
m of ___________________________________________________________________________________________________________________________________
CYRUS D. MEHTA & PARTNERS PLLC Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of
Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation
Task Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics Committee; special counsel on immigration

matters to the Departmental Disciplinary Committee, Appellate Division, First Department, New York; member
of the ABA Commission on Immigration; board member of Volunteers for Legal Services and board member of

  New York Immigration Coalition. Mr. Mehta is the former chair of the Board of Trustees of the American Immi-
   
­ gration Council and former chair of the Committee on Immigration and Nationality Law of the New York City
€
‚   Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on ethics,
and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration
and Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of
immigration law and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing
pro bono representation in the immigration field. He has also received two AILA Presidential Commendations in
2010 and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by Who’s Who
2 6th Floor Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers Global 2019 in

    immigration law, among other rankings.

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