USCIS Publishes Additional Guidance on Scope of H-1B Proclamation

On October 20, 2025, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance on its ‘H-1B Specialty Occupations’ website (under dropdown titled “Presidential Proclamation on Restriction on Entry of Certain Nonimmigrant Workers“) clarifying the implementation of the Presidential Proclamation, Restriction on Entry of Certain Nonimmigrant Workers, which took effect on September 21, 2025. The Proclamation, described as an initial step toward reforming the H-1B program, requires certain H-1B petitions filed on or after 12:01 a.m. EDT on September 21, 2025, to include an additional $100,000 payment as a condition of eligibility.

This additional guidance indicates that the scope of the Proclamation is far narrower than initially expected. Notably, the $100,000 payment will not apply to H-1B change of status petitions filed in the March 2026 (FY2027) H-1B lottery as long as the beneficiary is physically present in the United States in a valid status (for example, F-1 OPT or STEM OPT, TN, L-1, E-3, O-1, etc) at the time of filing and does not depart the U.S. before the petition is approved. This clarification significantly limits the situations in which the additional payment is required, providing reassurance to employers and foreign nationals who are already in valid U.S. status.

Who Is Subject to the $100,000 Payment

The payment requirement applies to:

• New H-1B petitions filed on or after September 21, 2025, on behalf of beneficiaries who are outside the United States and do not hold a valid H-1B visa; and
• Any H-1B petitions requesting consular notification, port-of-entry notification, or pre-flight inspection—whether or not the beneficiary is physically in the United States—unless the beneficiary holds a valid H-1B visa.

If USCIS determines that a petition filed on or after September 21, 2025, and cannot be approved as a change of status, amendment, or extension of stay (for example, because the beneficiary is not in valid nonimmigrant status at the time of filing, or departs the United States while the change of status is pending), the Proclamation will apply and the $100,000 payment will be required.

The Proclamation does not apply to:

• Any H-1B visa that was valid and issued before September 21, 2025;
• Any H-1B petition filed before September 21, 2025; or
• Any H-1B petition requesting amendment, change of status, or extension of stay for an H-1B worker already in the United States, as long as USCIS approves the requested action.

Additionally, once such a petition is approved, the H-1B worker may continue to travel internationally and seek reentry on a new, valid H-1B visa without triggering the payment requirement.

How and When to Pay

USCIS has now confirmed the process for submitting the required $100,000 H-1B payment. Petitioners must make the payment before filing the H-1B petition using pay.gov, and must include proof of payment (or evidence of an approved exception from the Department of Homeland Security) with the petition. Petitions subject to the payment that are filed without proof will be denied.

Exceptions

USCIS reiterated that exceptions will be granted only in rare cases. To qualify, the Secretary of Homeland Security must find that the foreign national’s employment is in the national interest, that no qualified “American” worker is available, that the individual poses no security or welfare risk, and that requiring the payment would significantly undermine U.S. interests. However, no guidance on what evidence would be required to demonstrate a lack of available “American” workers.

Employers and individuals who believe their case meets this standard may submit requests and supporting documentation to H1BExceptions@hq.dhs.gov.

If you have any questions, please contact your McCown & Evans attorney.