Presidential Proclamation Extends $100K H-1B Fee
On September 18, 2026, President Trump issued a proclamation that extends through September 21, 2027 a $100,000 fee for H-1B petitions that are filed as consular petitions or are only approvable for consular notification. This follows President Trump’s September 2025 proclamation that imposed a $100,000 fee on H-1B consular petitions filed from September 21, 2025 through September 21, 2026. More details on the 2025 proclamation can be found in our prior alert.
Background on the $100,000 H-1B fee and a Federal Court Injunction
A July 2026 court order from the US Court of Appeals for the First Circuit barred USCIS from collecting the $100,000 H-1B fee. A USCIS appeal of this decision remains pending with the Federal Appeals Court.
Based on the language in the new proclamation, it appears that USCIS may immediately implement this fee despite the existing federal court order. We expect USCIS to argue that the new proclamation is not impacted by the July 2026 Federal District Court decision. This approach will surely result in immediate litigation in order to clarify the validity of the $100,000 fee.
To strengthen its legal position, the administration argues that the combined effects of the 2025 proclamation and the weighted H-1B selection process have increased access for highly skilled, highly paid workers, citing H-1B filing statistics from the past year.
Which H-1B Petitions Are Subject to the $100,000 Fee?
The new proclamation requires that the employer pay an additional $100,000 filing fee for an H-1B petition filed on behalf of a person who “must seek admission to the United States to effectuate the approval of a petition described in section 1 of this proclamation, including through consular notification, notification at a port of entry, pre‑flight inspection, or pre-clearance.”
As with the prior proclamation, the $100,000 fee applies only to “new” H-1B petitions filed on or after September 21, 2026:
- for beneficiaries who are outside the United States and do not have a valid H-1B visa; or
- for any H-1B petition that requests consular notification, port of entry notification, or pre-flight inspection for a beneficiary who is in the United States.
Which H-1B Petitions Are Exempt From the $100,000 Fee?
The $100,000 fee does not apply to any H-1B petitions for beneficiaries:
- who have an H-1B visa or an approved H-1B petition submitted prior to September 21, 2026; or
- who are in the United States and are being sponsored for an H-1B amendment, change of status, or extension of stay.
Based on a plain reading of the USCIS update, the $100,000 fee also does not apply to a beneficiary who has an H-1B visa issued prior to September 21, 2026 or an approved H-1B petition that was filed prior to September 21, 2026.
Mintz is closely following all policy developments and litigation related to the H-1B program. Please contact a member of the Mintz Immigration Team for more information: https://www.mintz.com/industries-practices/immigration
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