Updated USCIS guidance on H-1B petitions

Updated USCIS guidance on H-1B petitions

November 18, 2025

On September 19, 2025, a Presidential Proclamation, Restriction on Entry of Certain Nonimmigrant Workers, instituted a $100,000 fee for certain H-1B petitions effective September 21, 2025. USCIS provided further clarification and guidance on October 20, 2025, and what we know to date is summarized below. Updates will continue to be posted for the MIT community when/if USCIS releases additional information.

Key actions:

• It is more important than ever that international scholars at MIT with H-1B petitions in process discuss all travel plans with ISchO, and not travel if doing so would jeopardize approval of the H-1B petition or potentially activate the $100,000 fee requirement. 

• International student alumni, whose employers have submitted H-1B petitions on their behalf, should contact their employers to discuss how this new guidance may apply to their status.

Updated guidance:

The following types of H-1B petitions are not subject to the additional $100,000 fee:

• H-1B petitions that were approved, or pending at USCIS, before September 21, 2025 (regardless of whether the foreign national had a valid H-1B entry visa stamp in their passport).

• Petitions for changes from another status (such as F-1, J-1, TN) to H-1B that were filed while the foreign national was in the U.S., on or after September 21, 2025 and were approved.

• Petitions for changes of H-1B employer, extension of H-1B status, or amendment, that were approved while the foreign national was in the U.S., on or after September 21, 2025.

USCIS made it clear that people who have approved H-1B petitions for change of status, change of employer, or extension of status can travel outside the U.S., seek new H-1B visa stamps at U.S. Consulates, and reenter the U.S. without payment of the additional fee.

The following types of H-1B petitions do require employer payment of the additional $100,000 fee in order to proceed:

• Petitions submitted to USCIS while the foreign national is outside the U.S.

• Petitions submitted for consular notification, port of entry notification, or pre-flight inspection.

• Petitions submitted while the foreign national is inside the U.S., that are denied for change or extension of H-1B status, and instead are approved for consular notification, port of entry notification, or pre-flight inspection.

• Petitions for change to or extension of H-1B status that USCIS considers to have been “abandoned,” because the foreign national traveled outside the U.S. while the petition was pending at USCIS and not yet approved. International scholars at MIT with H-1B petitions in process should discuss all travel plans with ISchO, and not travel if doing so would jeopardize approval of the H-1B petition or potentially activate the $100,000 fee requirement. 

What is still unclear?

• Whether USCIS would consider a petition to be subject to the additional fee for a person with a valid H-1B visa stamp in their passport, but who departs the U.S. while an H-1B extension or amendment petition is pending at USCIS, and who returns to the U.S. before their current H-1B visa stamp expires.

• Whether USCIS would consider a petition to be subject to the additional fee for a person with a valid visa stamp in their passport, but who departs the U.S. while an H-1B change of employer petition is pending at USCIS, and who returns to the U.S. before their current H-1B visa stamp expires.

How is MIT approaching these fees?

MIT is addressing the fees on a case-by-case basis. Departments seeking to hire employees who will be entering the U.S. for the first time and planning on an H-1B visa should reach out to their dean’s office for guidance.

Exception to the $100,000 fee

There is a means listed in the USCIS guidance for an employer to submit an individual exception request, in advance of filing an H-1B petition. However, the guidance states that granting of exceptions is expected only in “extraordinarily rare” circumstances. The employer must demonstrate to the Secretary of Homeland Security that:

• The foreign national’s presence in the United States as an H-1B worker is in the national interest;
• No American worker is available to fill the role;
• The foreign worker does not pose a threat to the security or welfare of the United States;
• And that requiring the petitioning employer to pay the additional fee would significantly undermine the interests of the United States.

The Proclamation is being challenged in court, and we expect guidance from the court later this year. Unless the new fee requirement is blocked by a court or a change in guidance from a federal agency, the Proclamation is in effect.

For reference, see MIT original posting on the September 20, 2025 USCIS announcement here that has been updated with the new guidance above.