Recent H-1B Update
Good News for Employers: USCIS Clarifies $100,000 H-1B Fee will NOT impact New H-1B Change of Employer, Change of Status or Extension Petitions
USCIS has issued a key update clarifying the scope of the $100,000 H-1B petition fee introduced under the recent Presidential Proclamation. The update brings positive news for employers.
According to USCIS, the $100,000 fee does not apply to:
H-1B change of employer, extension, change of status, or amendment petitions filed for individuals already in the U.S. in a valid nonimmigrant status. However, if USCIS determines that the individual is not eligible for the requested change/extension/amendment of status (e.g, they are deemed to have been out of status at the time the petition was filed or leave the U.S. while a change of status request is pending), the $100K fee will apply.
H-1B cap petitions requesting a change of status filed for individuals who are in the U.S. in a valid nonimmigrant status (e.g., F-1, L-1, TN, etc.). The $100k fee will apply to petitions requesting consular notification or petitions that cannot be approved as a change of status (e.g, they are deemed to have been out of status at the time the petition was filed or leave the U.S. while a change of status request is pending).
In addition, USCIS has now confirmed that the Proclamation does not impact:
International travel and reentry for H-1B employees with valid I-797 Approval Notices with an I-94 annotation amending/extending/changing their status.
This means employers can continue to file H-1B petitions in the following scenarios without triggering the new fee or travel restriction:
H-1B cap petitions requesting a change of status for U.S.-based candidates (e.g., F-1 OPT/CPT, TN, L-1/L-2, E-3 holders) who are maintaining their current nonimmigrant status.
H-1B change of employer petitions with request for extension or amendment of status for H-1B workers already in the U.S. and maintaining their H-1B status with a different employer.
H-1B change of status petitions for candidates in the U.S. who currently hold and are maintaining another nonimmigrant status.
Extending or amending existing H-1B employment.
Why This Is Good News
Strategic hiring: U.S.-based candidates holding and maintaining a valid nonimmigrant status remain a viable, cost-effective option for securing talent. Employers can continue their practices of recruiting recent graduates holding F-1 OPT status or another nonimmigrant status and then registering them in the H-1B lottery. Employers can continue to recruit candidates who currently hold H-1B status for another employer. It will also be possible to file H-1Bs for individuals who previously held H-1B status for less than six years (or who are eligible for an H-1B beyond the 6th year) but are now in another status.
Cost control: We now have confirmation that the $100,000 fee applies only in very limited circumstances—primarily for individuals requiring consular processing including new hires outside the U.S. and individuals who are not maintaining a legal status in the U.S.
Better odds for future H-1B lottery selections: By removing previous incentives for foreign consulting companies to submit a large number of H-1B lottery registrations for people outside the U.S., U.S. employers should have better odds of “winning” the H-1B lottery for their employees.
What You Should Do Now
Update your HR/Recruiting Teams to let them know that H-1B sponsorship continues to be a viable option in the vast majority of cases.
Let your H-1B workforce know that they can travel internationally and apply for new H-1B visa stamps without worrying about triggering the $100K fee so long as they have an I-797 Approval Notice with a valid I-94 record.
For change of employer (port) cases, confirm at the outset that the candidate is maintaining their H-1B status by continuing to work for the employer listed on their H-1B approval notice.
Avoid consular processing for candidates and existing employees holding another valid visa status (e.g., TN, L-1, L-2, E-3) and confirm at the outset that they are maintaining their status.
File H-1B extension/change of status/change of employer petitions as early as possible to ensure that the H-1B employee remains eligible for the requested change/extension of status.
We’ll continue to monitor developments and provide updates as policy evolves. If you have questions about how this impacts your workforce planning, we’re here to help.