$100K H-1B Fee Explained—Impact on Job Changes After the Proclamation

Grace Shie: Welcome to The Inside Track. My name is Grace Shie and I lead Mayer Brown's Global Mobility Practice. Today I'm joined by my partner, Max Del Rey. The subject of one of our earliest episodes centered on the H-1B proclamation that was announced on Friday, September 19, 2025. That proclamation restricts the entry of H-1B workers into the United States absent a payment of $100,000. And at the time of our recording, we had some information from the relevant agencies, including Customs and Border Protection, and from US Customs and Immigration Services (USCIS) on whether current H-1B workers would be able to travel and get back into the United States without the fee being paid. But there were also many open questions at that time. For example, what types of H-1B petitions would be subject to the fee? What mechanism would the government use to collect fee payment if an employer chooses to do so? And what types of H-1B workers might be exempt from the fee on national interest grounds that were referenced in the proclamation. Well, we have since further received guidance on some of these questions, and that's what Max and I are going to discuss today. So, Max, why don't we start by you sharing the additional guidance that we received about a month after September 19th on the proclamation.

Maximillian Del Rey: Thanks, Grace. So the proclamation, is titled Restriction of Entry of Certain Non-Immigrant Workers; what we've learned since September 19 is that the proclamation will only apply to certain H-1B workers and not to many others. And so, you know, what we've kind of delved into as a practice is all of the different ways that you can file an H-1B petition. They're not one size fits all. And there are 20-something different ways to file an H-1B petition. And so what we'll explore today are the different types of H-1B petitions that are subject to the $100,000 fee proposed in the proclamation and those that are not, and related strategy that kind of follows that, especially as related to H-1B changes of employer.

Grace Shie: That's a good overview. let's talk about, so that additional guidance for everyone's reference was released or published by USCIS on October 20. So a lot of the information we will share today is based on a combination of what was publicly released on that date, as well as just additional learnings that have come out since the date of the proclamation. So I guess let's just tackle the overall issues. Which H-1B petitions, Max, are considered subject to the fee?

Maximillian Del Rey: Okay, so the fee will apply to all H-1B petitions filed on or after September 21, 2025, requesting what's called consular notification or the similar ideas of port of entry notification or pre-flight inspection notification. Basically, the mechanism for activating the H-1B petition is entry into the United States. So the mechanism for an H-1B beneficiary to activate their H-1B visa status is entering the US. We call these different terms like consular notification, port of entry notification, pre-flight inspection, depending on other facts and people's backgrounds. But that is the basics. The fee will also apply when USCIS determines that an H-1B candidate is not eligible for continued status in the U.S. based on a petition request, such as a change of status and amendment or an extension of status, and the agency approves the petition as consular notification only.

Grace Shie: So it like we have two different buckets. Let's break that down a little bit. So in the first bucket, the fee does apply to those whose petitions are approved subject to consular notification. I know there are a couple other categories, but consular notification as the big bucket. What types of individuals would be subject to consular notification?

Maximillian Del Rey: So in general, Grace, the types of individuals subject to that are individuals who are outside the US. At the time, the H-1B petition is filed. In addition to that, it'll apply to people who are inside of the US who, number one, have not maintained their status either before the petition was filed or even after the petition was filed. So that's really your two buckets. It's basically everyone who is not eligible for a kind of a continuation or change of their status in the United States.

Grace Shie: Okay. And then you mentioned that also applies if the extension of status is not approved and it's approved for concert notification. So it might be an employer may not intend to be requesting for concert notification, but the petition is approved with concert notification.

Maximillian Del Rey: Yeah, exactly. So when an employer submits an H-1B petition requesting that someone already in the US have their status, their H-1B status extended, one component that the Immigration Service is looking at in approving that request is whether the individual has maintained their status in the US. Basically, whether they've been following all the relevant visa rules attached to their visa, right? And if the Immigration Service determines that for some reason or another, an individual hasn't maintained their status. The immigration service cannot approve in their discretion an extension of that status, right? There is no status really to extend because it hasn't been maintained. And that would open up this $100,000 fee in a case like that.

Grace Shie: So then in contrast, you've just talked about when the fee does apply to which individuals and which types of petitions. What about cases where the petitions are not subject to the fee?

Maximillian Del Rey: So, you know, it's kind of the everybody else, but basically it's your individuals already in the United States who have maintained their status. So it's individuals who are already in H-1B status in the U.S. who are with their employer seeking additional H-1B status, or it could be individuals in other visa statuses like a student visa or another kind of work visa who are seeking to change status to H-1B like individuals who have been selected in the annual H-1B visa lottery and who have student visa status, right? For many of those individuals, they'll be eligible to change status in the US and they wouldn't be subject to the $100,000 fee if the Immigration Service agrees that they have indeed maintained their H-1B status.

Grace Shie: So let's say a company is currently employing an H-1B worker, like a software engineer or a financial manager. And the H-1B worker's status is about to expire. And so in a normal course, the employer would file to extend that worker's H-1B. In that case, that's the sort classic extension that you say is not subject to the fee, correct?

Maximillian Del Rey: Correct.

Grace Shie: So one of the questions that we were not able to answer when we last recorded, was sort of the mechanism for payment. This fee amount has been imposed. And for employers who choose to make payment because they're about to sponsor an H-1B worker who is subject to the payment, what do they do? How do they make the payment?

Maximillian Del Rey: Mm-hmm. So there's been a website set up at pay.gov, a government website to pay the $100,000 fee. The idea here is that the $100,000 fee would be paid before you submit the H-1B petition that is subject to the fee. So you'd include some receipt from that pay.gov website with your H-1B petition, and that would be the mechanism to getting that petition approved, ultimately.

Grace Shie: So we have clarification on the types of H-1B petitions that are subject and not subject to the fee. And we know how to pay the fee now via this website, pay.gov. Now, the proclamation has important language about the fee not applying in cases where the H-1B workers employment is in the national interest. And I have the proclamation pulled up it says if it is in the national interest and does not pose a threat to the security or welfare of the United States. So what do we know about this national interest process?

Maximillian Del Rey: The additional guidance we received, such as that guidance on October 20th, confirmed that exceptions will be granted in extraordinarily rare circumstances, a very high bar. So that extraordinarily rare circumstance was described as something the Secretary of Homeland Security would grant, again, if an employee's work is in the national interest and no U.S. worker is available for the role. In addition to the security welfare threats described by you. So that's the standard. I personally, think we as a practice are unaware of any such exceptions being granted to present.

Grace Shie: Because that's that you've referred to that as a very high bar and I agree. No American work and being available for the role that's reminiscent that calls to mind other US immigration processes where that same level of proof is required. And we know that's a quite prolonged process with many requirements and extensive timelines. So it's just, I guess we don't have information on how to make that demonstration yet, but it does call that to mind.

Maximillian Del Rey: Right. There's been no yeah, there's been no guidance on how to prove that negative exactly.

Grace Shie: Okay. So over the past few weeks, we have evaluated the impact of the proclamation and now this October 20 guidance from USCIS. So let's focus on a specific topic that's been raised and you alluded to that at the beginning of this episode. That centers on H-1B workers who are already in the United States in H-1B status. In the normal course, H-1B workers can and will change jobs, change employers, seek new employment opportunities. And because of their immigration status, the new employer is required to file what we refer to as an H-1B change of employer petition. Can you talk a little bit about the issue that's been surfaced for this type of filing?

Maximillian Del Rey: Exactly. Okay, so really, what we're going to discuss today is the cadence of certain events during that H-1B change of employer process. There's a few milestones that we're all very aware of when you change employers. These include when you give notice to your current employer, when you actually stop working for your current employer, and when you join the next employer, the future state employer. Those are three big ones. Obviously, there are other ones, but those are the three we're going to talk about today. And what the proclamation does is it influences when employers and their H-1B candidates take those steps or when they should take those steps. And what is the risk associated with that? It relates back to what we were discussing before about this idea of maintaining your status, which we'll get into right now. But basically right now, the way H-1B changes of employer work is that the earliest that an H-1B worker can change employers is when the new employer, the future state employer files the H-1B petition with the immigration service. So on the day that petition is received by the immigration service, just based on plain work authorization rules, that H-1B worker would generally be eligible to start working for the new employer, even before that change of employer petition is actually reviewed or approved by the immigration service. We call this portability.

Grace Shie: So just upon filing, don't have to wait until approval.

Maximillian Del Rey: Exactly, exactly. We call this portability. You are portable as soon as that petition is filed. That is the fastest way to do that process, right?

Grace Shie: Because you don't have to wait until the approval.

Maximillian Del Rey: So what that means, yeah, exactly. You've already given notice, you've already stopped working for your current employer, and now you're going to join the next employer on the day the petition is filed. So very fast, everyone's excited to onboard, it's great news. But there is more risk associated with that now. And basically, what we're encouraging employers to do is to delay onboarding.

Maximillian Del Rey: Until the petition is approved by USCIS. And let me unpack that more because it's more than just that. So again, notice, resignation, and then starting with a new employer. We recommend that all three of those steps happen only after a petition is approved by the immigration service. And this relates to what we were talking about before, in terms of the immigration service reviewing a petition.

Grace Shie: Why is that?

Maximillian Del Rey: And one of the factors they're looking at is whether an individual has maintained their status in the United States. So, you know, an employer may file an H-1B petition requesting that change of employer and requesting that an individual's H-1B status be extended so that they can join the new employer, right?

Grace Shie: And you had said earlier, if you ask for an extension, the fee doesn't apply.

Maximillian Del Rey: Exactly. So everyone's kind of going into this assuming the fee won't apply. However, then the immigration service, you know, in their discretion will review the petition, they will review a candidate's eligibility for that extension of status. And if there is a disagreement between the immigration service and the petitioner about whether someone is eligible, the ultimate outcome may be that the immigration service, again, in their discretion, ton of discretion, does not grant that extension of status and instead approves the petition for consular notification.

Grace Shie: That’s when the fee is triggered.

Maximillian Del Rey: Right. So again, the risk becomes that if someone joins an employer before the petition is approved, and an issue like that were to occur, that they would be left with very few options for continuing their US status. The option would be either paying $100,000 fee or otherwise picking from what might be a very limited pool of options such as returning to their previous employer, which they've already terminated from, right? Or finding another visa status in the US to pivot to. These are not going to be good options generally for most people. And that's why we recommend again, waiting on giving notice, waiting on resignation, and waiting on onboarding until the petition is approved. This is the lowest risk option. It's also likely the most time consuming option for employers. But again, given this $100,000 fee and what's at stake, for many employers, it will be the most prudent option.

Grace Shie: So, an employer will not know until they see the approval, whether it is approved as, irrespective of what they request, whether it will be approved as concert notification, where the fee applies, or extension of stay, where the fee does not apply. Got it. So why don't we then share an example to illustrate this risk? Let's say we have an H-1B worker named Kelly, and she's working for employer A, but she's been given a job offer to join employer B. Why don't we tease that out?

Maximillian Del Rey: Okay. All right. So Kelly's at employer A. Our good friend Kelly. Let's say that, let's see, today is the 12th of November. Kelly's super excited to get an offer of employment from employer B. They've gone through all the relevant, you know, background checks, everything related to offer and acceptance, and Kelly accepts that offer of employment. And, you know, of course, that start date with a new employer will be contingent upon Kelly, who is an H-1B worker, satisfying all of the immigration requirements for onboarding with Employer B. So when does Kelly tell Employer A that she is moving, she's jumping ship? When does Kelly actually stop working for Employer A and when does she join Employer B? That's what we're talking about. So, you the next step that usually happens after that offer and acceptance is that Employer B will reach out to their immigration lawyers, their employment counsel, and kick off an H-1B change of employer process. The law firm or the counsel would reach out to Kelly and request certain documents from her. They'd also prepare this labor condition application, this LCA document, among other things. And once all of that is in place, they'll prepare this H-1B petition and file it with the immigration service. If they got started on November 12th and they're moving at a normal pace, they'd likely file that H-1B petition next month, sometime in December, let's say December 12, 2025. Okay, so that petition is filed. The employer B has chosen the premium processing service, which is the expedited processing by the immigration service. That gets them a response from the immigration service in basically three weeks, in 15 business days. They should have a response by the end of December, early January, based on 15 business days. Only after that response, if it's an approval, should Kelly take any additional steps. And really to your point before, Grace, Kelly should wait until we have, or the council has the hard copy approval notice in hand before she resigns from, or she gives notice to her current employer. So that means that you know, starting on November 12, Kelly may not be able to give notice to her current employer for two months there until about, you know, let's say January 12, more or less. So that's a long timeline for a lot of employers to go through this process with a new hire. But again, it is the lowest risk option just given the potential for something wrong to happen in between and for that petition filed by employer B to be subject to that $100,000 fee.

Grace Shie: Got it. And generally, you know, I suppose if the employer is surprised and sees a concert notification approval, they can choose to either file the fee, not move forward with the hire. Or I suppose something in between is that I'm just thinking of is it sounds a little late, but perhaps they could pursue a national interest request.

Maximillian Del Rey: Right.

Grace Shie: Although clearly how that would work if it's post-approval.

Maximillian Del Rey: Right. Exactly. Those become the options for employer B if the $100,000 fee does apply. For many employers and many roles within those employers, the $100,000 won't make economic sense and the national exception may not be available.

Grace Shie: So this is very important advice for changes of employer with considerations not just for the companies that we represent, but also for H-1B workers, because oftentimes it's an alignment of their interests and agreement on the timeline. So what happens when the prior example, in our example, employer A, when they file to withdraw Kelly's H-1B petition, because we know there's an obligation for an employer to notify the immigration service when an H-1B worker terminates or separates. How does that action taken by employer A impact this risk analysis?

Maximillian Del Rey: And Grace, that's a great point. And it kind of further supports the conclusion we were at before, which is that H-1B workers should delay their notice to their current employer in that change of employer process. What we've seen have been happening after employers withdraw an H-1B petition is that some H-1B workers have been receiving what we call notices to appear. Basically a notice to appear in immigration court. To confirm whether that H-1B worker has a right to remain in the United States. They have some basis to remain. And the context here is that most H-1B workers have a 60-day period after termination to either depart the United States, change visa status, or otherwise find new H-1B employment. And so these notices to appear are coming in that context where this determination the immigration service feels has to be made by an immigration judge at that point. So again, it's really helpful if an H-1B worker does receive such a notice to appear, if they can show that they have a new H-1B approval, for instance, and that they've already kind of joined that employer and are maintaining their status. So again, waiting until the approval is in hand is another great factor and great piece of evidence in that kind of interaction if it were to.

Grace Shie: So it underscores, as you've outlined, the importance of sequencing each of these different milestones in the employment journey from the resignation to the new employer's filings. Well, to close that out, we're approaching the end of the year. And of course, every time we start a new calendar year, we look towards the H-1B lottery, the annual H-1B lottery that is conducted in the spring. Does the same issue that we started with in terms of how an H-1B petition is approved, whether for consular notification or for, in this case, change of status, I suppose, for an H-1B lottery case, does that issue apply to lottery-subject H-1B petitions?

Maximillian Del Rey: Yes. The same analysis would have to be done for lottery cases. The industry, I think, was pretty relieved to hear that the $100,000 fee does not apply to all H-1B lottery submissions. And it applies in a similar pattern as we were describing before. For those individuals already in the US, maintaining their non-immigrant visa status in the H-1B lottery context, that's mostly student visa holders. They would not be subject to the $100,000 fee if they are selected in the lottery and an H-1B change of status petition is filed on their behalf and ultimately approved as a change of status. The fee would apply to individuals who are not inside of the US if they are selected in the lottery when that H-1B petition is filed by their petitioner, by their future employer. Or individuals who are not eligible for a change of status in the US because they either haven't maintained their status in the US or there's some other issue or they're in a status that is not eligible for such a change. There are some of those. So, you know, those are the people who will feel the most impact in the H-1B lottery process.

Grace Shie: And applying the same rules that an F1 international student whose employer files an H-1B petition requesting a change of status. We don't really know until we see the petition approval. If it's approved as a change of status, the fee doesn't apply. But if for any of the reasons that you outlined, it's approved for concert notification instead, irrespective of the request that was made by the employer, then the fee would apply.

Maximillian Del Rey: Exactly.

Grace Shie: Well, There are several months and weeks between now, the date of today's recording and the lottery next year. So things could change with respect to agency guidance that we've shared today or with any legal challenges that are on the horizon. So my one caveat to our viewers and listeners is that this is a dynamic area. We're sharing information that we have available as of today's recording, but we do expect new guidance and possibly different. Guidance to be issued as this fee is being administered. So if in doubt, please don't hesitate to contact any of us at Mayer Brown. And this wraps up our segment of The Inside Track. We hope the insights shared today are helpful. And navigating this new H-1B world. Thank you for joining us.

Maximillian Del Rey: Thanks.