Most of our readers are now well aware of the new $100,000 filing fee for H-1 cases. This fee is the result of an Executive Order from the President. The Order is illegal, and, as discussed in a previous article about how it violates the Administrative Procedures Act, it almost certainly will be invalidated by a Federal Court as soon as a lawsuit is filed.
Another issue has come up which changes the entire understanding of this illegal rule/Order. It appears from information issued by USCIS that the new fee only applies to a small group of people seeking H-1 status. First, H-1 cases filed before September 21, 2025 are not included in the new fee requirement.
However, even more important than that exception is who the fee does not apply to regardless of the date the H-1 petition is filed. For example, an H-1 petition filed for a person in the US, as a change of status or extension of status, does not require the $100,000 fee. Anyone outside of the US who gets a new H-1 petition approved must pay the fee. Additionally, a person who is in the US but seeks to get a visa at a US consulate after her/his employer obtains an approved H-1 petition may be subject to the new fee.
Although the information from the government is murky, and at times misleading, it appears the distinction of who must pay the fee depends on the physical location of the beneficiary, not the status of that person prior to filing the H-1 petition. For example, USCIS offers the following situation as something Adjudicators must look very closely for: a person with a B-2 visa is admitted as a Visitor for Pleasure but then decides to change status to H-1. If USCIS is telling their Officers to look carefully at cases like this, the implication is that an H-1 petition and change of status in the US are permitted without paying the new fee. Otherwise, there is no reason to issue this warning. This also means F-1 students who are selected in the H-1 lottery would not pay the $100,000 fee if their H-1 petition includes a change of status request.
Of course, USCIS could change it’s mind and decide to expand the scope of this new fee, but since it is already illegal, we think this may be its final form.
