Basic HTML Version

|  | Table of Contents |  | View Full Version

Page 37 - The Indian EYE 110725
P. 37

    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.

                                                                   www.TheIndianEYE.com

| 32 33 34 35 36 37 38 39 40 41 42 |