H-1B $100,000 Fee: 2026 Guide to Who Pays, Who’s Exempt, and Current Legal Status

Breaking: On June 8, 2026, a federal judge in Massachusetts vacated the H-1B $100,000 fee in its entirety, calling it an unlawful tax. Four days later, the court stayed its own ruling while the government appeals to the First Circuit. As of June 23, 2026, the fee is still being collected. Employers filing consular processing petitions must continue to pay until further notice — but the fee could disappear without advance warning if the appellate court lifts the stay.

This guide covers every aspect of the H-1B $100,000 fee: who owes it, who is exempt, how to pay, the full court timeline, the FY2027 weighted lottery, and the DOL prevailing wage proposal. Bookmark it. We update it as the law changes.

Table of Contents

• What Is the H-1B $100,000 Fee?
• Who Must Pay the $100,000 Fee?
• Who Is Exempt? (The Majority of H-1B Workers)
• Current Legal Status: Is the Fee Still in Effect?
• How to Pay the $100,000 H-1B Fee
• National Interest Exception
• FY2027 H-1B Lottery: The New Wage-Weighted System
• DOL Proposed Prevailing Wage Increases (March 2026)
• FDNS Site Visits and Enforcement Surge
• Employer Strategy: 5 Things to Do Right Now
• When to Consult an Immigration Attorney
• Frequently Asked Questions

What Is the H-1B $100,000 Fee?

Proclamation 10973, titled “Restriction on Entry of Certain Nonimmigrant Workers,” was signed on September 19, 2025, and took effect September 21, 2025 at 12:01 a.m. EDT. It imposes a $100,000 fee on H-1B petitions for foreign nationals who will be processed at a U.S. consulate abroad. The proclamation relies on presidential authority under INA sections 212(f) and 215(a) — the same authority used to impose travel bans.

The fee is paid by the petitioning employer, not the worker. It is non-refundable under all circumstances. If USCIS denies the petition after you pay, you do not get the $100,000 back. The fee is separate from — and in addition to — all standard USCIS filing fees, which can themselves total $5,000 to $15,000 or more depending on employer size and processing type.

The proclamation is set to expire on September 21, 2026, unless the President extends it. Under the proclamation’s own terms, the Secretaries of State, Homeland Security, and Labor, and the Attorney General were required to submit renewal recommendations within 30 days of the March 2026 lottery. Those recommendations were submitted approximately in April 2026. As of June 23, 2026, no public announcement of extension or termination has been made.

Who Must Pay the $100,000 Fee?

The fee applies when the beneficiary will be processed outside the United States. Specifically, the following five categories of petitions trigger the $100,000 requirement:

• New H-1B petitions for beneficiaries currently abroad who do not hold a valid H-1B visa at the time of filing.
• Petitions requesting consular processing, port-of-entry notification, or pre-flight inspection — any petition where the worker will receive their visa stamp at a U.S. consulate overseas.
• Change-of-status or amendment petitions that convert to consular processing because the beneficiary departs the United States before USCIS adjudicates the petition. Departure mid-adjudication is a common and costly mistake.
• Cap-exempt employer petitions where the beneficiary is abroad. Universities, nonprofits, and government research facilities are cap-exempt, but they are not exempt from the $100,000 fee if the worker they are sponsoring is located outside the U.S. at the time of filing.
• New petitions for H-1B workers who exhausted the 6-year cap, departed the U.S., and are now abroad seeking a fresh H-1B petition with a new employer or after an EB green card reset.

Who Is Exempt? (The Majority of H-1B Workers)

Approximately 75% of H-1B workers in the United States graduated from U.S. universities. Most of them initially file as F-1 students and transition to H-1B status through a change-of-status petition filed while they remain inside the country. These workers are exempt from the $100,000 fee — provided they do not travel internationally while their petition is pending. This is the single most important exemption to understand.

The six categories of petitions that do not trigger the $100,000 fee are:

• Petitions filed before September 21, 2025 — the proclamation is not retroactive.
• Extensions of stay for workers who are lawfully present in the U.S. in valid H-1B status.
• Amendments for workers currently in valid H-1B status inside the United States.
• Change-of-employer transfers where the H-1B worker is in valid H-1B status and remains in the U.S. throughout the process.
• Change-of-status petitions (such as F-1 to H-1B, or O-1 to H-1B) where the beneficiary maintains lawful status in the U.S. and does not travel abroad before USCIS adjudicates the case.
• Visa stamp renewals at U.S. consulates for workers whose approved I-129 petition was filed before September 21, 2025. The pre-proclamation filing date controls.

The F-1 Student Change-of-Status Exemption Explained

If you are an F-1 student and your employer files an H-1B change-of-status petition on your behalf for FY2027 or later, you are exempt from the $100,000 fee as long as you stay in the United States while USCIS processes the case. Your F-1 OPT or cap-gap status keeps you in lawful status throughout adjudication, and no consular processing is involved.

The trap is travel. If you leave the United States before USCIS approves your H-1B petition, your change-of-status request is automatically abandoned. Your case converts to consular processing, and your employer owes the $100,000 fee before refiling. This is true even if you leave for a short trip and return quickly. Do not travel internationally while your H-1B petition is pending unless you have confirmed your petition has been approved.

Current Legal Status: Is the Fee Still in Effect?

This section is the most important thing to read before making any H-1B filing decision in 2026. The fee has been challenged in three federal courts. One court upheld it. One court vacated it entirely. The vacatur is currently stayed. Here is the complete timeline as of June 23, 2026:

As of June 23, 2026, the $100,000 fee remains in full effect. The June 8 vacatur issued by Judge Sorokin is stayed, meaning it does not currently protect anyone from paying. Every employer filing a consular processing petition must still include proof of payment with the I-129 or face denial.

However, the legal landscape is genuinely volatile. Two federal courts have now reached opposite conclusions on the same fee. If the First Circuit lifts the stay, the fee could be eliminated with little or no advance notice. Employers with petitions in the queue should monitor this case closely. The case name is California et al. v. Noem et al., No. 1:25-cv-13829 (D. Mass.), and the First Circuit docket number will reflect the government’s appeal filed June 11, 2026.

There is also a separate pending appeal in the D.C. Circuit from the Chamber of Commerce case, in which the district court upheld the fee. That appeal, fast-tracked in January 2026, remains pending. It is possible the two circuits will reach conflicting results, which would increase the likelihood of Supreme Court review.

How to Pay the $100,000 H-1B Fee

Payment must be completed before the employer files the I-129 petition with USCIS. A petition filed without proof of payment will be denied, and the $100,000 payment already made is not refunded. Follow these steps:

1. Go to pay.gov — the official U.S. Treasury payment portal at pay.gov.
2. Search for “H-1B Visa Payment to Remove Restriction.” Use the exact search term to locate the correct payment form.
3. Complete the payment form for $100,000. The petitioning employer — not the beneficiary — makes this payment. Corporate check, ACH, or credit card options are available through pay.gov.
4. Save the confirmation receipt and transaction number. Print or download the receipt immediately. You will need the transaction number to complete the I-129 filing.
5. Attach proof of payment when filing Form I-129 with USCIS. The receipt is a required exhibit. Missing or insufficient payment documentation is a basis for denial without refund.

The fee cannot be passed on to the H-1B beneficiary. Federal law prohibits employers from requiring workers to reimburse H-1B filing fees, and the $100,000 falls within that prohibition. Employers who attempt to recover this cost from the worker face DOL enforcement action.

National Interest Exception

Proclamation 10973 includes a narrow exception allowing the DHS Secretary to waive the $100,000 fee in cases of national interest. Do not count on this exception. It is described in the proclamation itself as “extraordinarily rare,” and all four of the following criteria must be satisfied:

• The petition serves a U.S. national interest.
• No American worker is available to fill the role.
• The beneficiary poses no threat to U.S. security or the welfare of U.S. workers.
• Requiring payment of the fee would significantly undermine a U.S. national interest.

Exception requests are submitted by email to H1BExceptions@hq.dhs.gov. There is no form, no processing timeline, and no guarantee of a response. As of June 2026, no publicly reported cases of approved exceptions have emerged. Treat this as a theoretical safety valve rather than a planning tool.

FY2027 H-1B Lottery: The New Wage-Weighted System

Beginning with the FY2027 registration cycle, USCIS replaced the random lottery with a wage-weighted system. The Final Rule was published December 29, 2025 and took effect February 27, 2026. Under this system, registrations for higher-wage positions receive more lottery entries and therefore face better selection odds.

The weighting structure works as follows:

FY2027 registrations dropped sharply. The FY2026 cycle drew 343,981 registrations. FY2027 drew approximately 210,000 — a 39% decline. USCIS and analysts attribute the drop to two factors working together: the $100,000 fee deterring consular processing registrations, and the weighted system making low-wage registrations statistically unattractive. Despite the lower volume, the 85,000 annual cap was still fully reached during the March 4-19, 2026 registration window.

The practical consequence for employers is that wage level is now a strategic hiring variable. An employer offering a Level IV salary has roughly four times the selection probability of an employer offering Level I wages for an otherwise equivalent position. For employers who have historically sponsored at Level I or Level II, revisiting compensation benchmarks before the next lottery cycle could materially improve selection outcomes.

One timing note: the FY2027 cap-subject petition filing window runs April 1 through June 30, 2026. Consular processing petitions filed in this window are subject to the $100,000 fee. The petitions support an October 1, 2026 employment start date. Change-of-status petitions filed in this window remain exempt, provided the beneficiary does not travel abroad before adjudication.

DOL Proposed Prevailing Wage Increases (March 2026)

On March 27, 2026, DHS published a proposed rule (Docket No. 2026-06017) that would substantially raise the prevailing wage floors for H-1B and related visa categories. The comment period closed May 26, 2026. A final rule is pending and could take effect as early as late 2026.

The proposed changes move each wage level to a higher wage percentile:

The proposed rule’s impact analysis estimates an average annual wage increase of approximately $14,000 per sponsored worker. Entry-level H-1B salaries could rise 30% or more, depending on the occupation and geographic area. The rule applies to H-1B, H-1B1, and E-3 visas, and to PERM labor certification supporting EB-2 and EB-3 green card sponsorships.

Employers sponsoring workers at Level I or Level II should model the potential wage impact now. If the rule is finalized, it will interact with the weighted lottery in a compounding way: employers may need to raise wages both to remain compliant and to improve selection odds.

FDNS Site Visits and Enforcement Surge

The H-1B enforcement environment in 2025-2026 is more aggressive than at any prior point. USCIS’s Fraud Detection and National Security (FDNS) unit completed more than 6,500 worksite visits by the end of 2025 and conducted over 19,500 social media checks on petitioners and beneficiaries during the same period.

The H-1B Modernization Rule, which took effect January 17, 2025, made employer cooperation with FDNS site visits mandatory. An employer that refuses access or is unable to produce the H-1B worker at the declared worksite faces revocation of the petition and potentially a finding of misrepresentation. This is a meaningful change from the prior voluntary-cooperation framework.

DOL launched “Project Firewall” in September 2025, a joint DOL-USCIS enforcement initiative targeting wage and status violations. By November 2025, Project Firewall had opened 175 active investigations. High-risk targets under this initiative include third-party staffing and consulting companies, petitions where the offered wage is close to the prevailing wage floor, high-volume petition filers, and employers with a history of Requests for Evidence (RFEs) or prior violations.

Practical steps every H-1B employer should take now: confirm that the worksite address on the Labor Condition Application (LCA) matches where the worker actually reports; verify the worker is performing the specialty occupation duties described in the petition; ensure the LCA wage is posted at the worksite in compliance with DOL requirements; and document any changes in work location with an amended LCA and, where required, an amended H-1B petition.

Employer Strategy: 5 Things to Do Right Now

Given the intersection of the $100,000 fee, the First Circuit litigation, the weighted lottery, the proposed wage rule, and the FDNS enforcement surge, here are five concrete steps every employer sponsoring H-1B workers should take immediately.

1. Audit all pending and planned H-1B petitions. Identify which petitions require consular processing (and thus trigger the $100,000 fee) versus change-of-status filings (which are currently exempt). This distinction should drive your near-term immigration calendar.
2. Instruct all H-1B beneficiaries with pending change-of-status petitions not to travel internationally. Departure before adjudication converts the case to consular processing and triggers the $100,000 fee — retroactively, with no refund. This instruction should be in writing and acknowledged by the worker.
3. Monitor the First Circuit in real time. Set up a court docket alert for California et al. v. Noem et al. in the First Circuit. If the stay is lifted, you may have hours rather than days to decide whether to delay pending consular processing filings. Have a contingency plan ready.
4. Factor wage level into new H-1B hiring decisions. Under the FY2027 weighted lottery, a Level IV position has roughly four times the selection probability of a Level I position. The proposed DOL prevailing wage rule will also raise wage floors significantly. Building compensation strategy around these two pressures now — rather than after a final rule — is the lower-risk path.
5. Prepare for FDNS site visits before they happen. Review every active H-1B worker’s LCA and petition to confirm the worksite address is current, the job duties match, and wage posting requirements are met. If a worker has shifted to remote work in a different city or state, an amended LCA and possibly an amended petition may be required. The time to find compliance gaps is now, not when an FDNS officer arrives.

When to Consult an Immigration Attorney

The H-1B landscape in 2026 involves moving legal targets: a stayed court vacatur, a pending First Circuit ruling, a proposed wage rule, and an active enforcement surge. Getting the fee applicability determination wrong costs $100,000 — non-refundable. Getting the travel advice wrong for a pending change-of-status case costs the same amount, plus delays the worker’s employment start date by months.

Adan G. Vega is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. The firm advises employers across the United States on H-1B compliance, fee applicability determinations, RFE responses, change-of-status strategy, and FDNS site visit preparation. Board certification in immigration law is held by fewer than 1% of Texas attorneys and requires demonstrated expertise and peer review.

¿Habla español? Nuestro equipo lo atiende en español. Llame al (713) 527-9606.

To schedule a consultation, visit adanvega.com/contact or call (713) 527-9606. Given the pace of change in this area, earlier consultation is better than later.

Frequently Asked Questions

Is the H-1B $100,000 fee still in effect in 2026?

Yes, as of June 23, 2026. A federal judge in Massachusetts vacated the fee on June 8, 2026, in California et al. v. Noem et al., No. 1:25-cv-13829. However, the same court stayed its ruling on June 12, 2026, while the government appeals to the First Circuit. The stay means the vacatur has no current legal effect. Every consular processing petition filed today must include proof of the $100,000 payment or it will be denied.

Does the $100,000 fee apply to change-of-status from F-1 to H-1B?

No, with one critical condition: the F-1 student must remain inside the United States throughout the entire USCIS adjudication period. Change-of-status petitions that are processed entirely within the U.S. do not trigger the fee. However, if the beneficiary departs the U.S. before USCIS approves the petition, the case automatically converts to consular processing and the $100,000 fee becomes due. Approximately 75% of H-1B workers file change-of-status from inside the U.S. and fall into this exempt category.

Who pays the $100,000 — the employer or the employee?

The petitioning employer pays the fee through the U.S. Treasury’s pay.gov portal before filing the I-129. Federal law prohibits employers from passing this cost to the H-1B worker or requiring the worker to reimburse it. An employer that charges the fee back to the employee faces DOL enforcement action, which can include debarment from the H-1B program.

What happens if the First Circuit lifts the stay on the vacatur?

If the First Circuit lifts the stay, Judge Sorokin’s June 8, 2026 vacatur would take effect immediately. The $100,000 fee would become unenforceable, and USCIS would be required to accept consular processing petitions without proof of payment. Petitions already denied solely for lack of payment could potentially be refiled. However, it is unlikely the government would issue refunds for fees already paid. This outcome could occur with very little advance notice — which is why monitoring the First Circuit docket is essential for any employer with pending or planned consular processing petitions.

When does the H-1B $100,000 fee expire?

Proclamation 10973 expires on September 21, 2026, unless the President issues an extension. The four agency heads required to submit renewal recommendations did so approximately in April 2026, but as of June 23, 2026, no public decision on extension or termination has been announced. If the proclamation is allowed to expire without renewal, the fee ends on September 21, 2026. Note that a First Circuit ruling striking down the fee could end it before that date.

Are nonprofit and university employers exempt from the fee?

Partially. Nonprofits, universities, and government research institutions are cap-exempt — meaning their petitions do not count against the 85,000 annual H-1B cap. But cap-exempt status does not automatically exempt them from the $100,000 fee. If a cap-exempt employer files a petition for a worker who is located abroad at the time of filing, the $100,000 fee applies. The exemption from the fee is based on where the beneficiary is located, not on the employer’s cap-exempt status.

How does the new weighted lottery affect H-1B selection odds?

Under the wage-weighted lottery system effective February 27, 2026, registrations for positions at higher prevailing wage levels receive more lottery entries. A Level IV position receives four entries; a Level I position receives one. USCIS estimates the resulting selection odds at approximately 15% for Level I, 31% for Level II, 46% for Level III, and 61% for Level IV. FY2027 total registrations fell 39% to approximately 210,000 compared to 343,981 the prior year, but the 85,000 cap was still fully filled. Employers who want to maximize selection probability should benchmark compensation against OES prevailing wage data and consider whether offering Level III or Level IV wages is achievable for the positions they are sponsoring.