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      The U.S. Citizenship and Immigration Services (USCIS) recently published additional guidance on the September 19, 2025 Presidential Proclamation (henceforward, “the proclamation”) that imposed a new $100,000 fee for certain H-1B petitions.1 For prior coverage of the proclamation, see GMS Flash Alert 2025-176, September 25, 2025.  

      The recent USCIS guidance states that the proclamation applies only to H-1B petitions filed on or after September 21, 2025, on behalf of H-1B beneficiaries who are outside of the United States and do not have a valid visa, as well as those who are the beneficiary of an H-1B petition filed or approved for consular notification.2 Unless filed or approved for consular notification, H-1B petitions seeking an extension, amendment, change of status, or change of employer will not be subject to the proclamation.3 

      WHY THIS MATTERS

      Given the questions left unanswered by both the text of the proclamation and initial guidance regarding the implementation of the proclamation, the recent USCIS guidance offers much-needed direction, helping employers to plan proactively and explore alternative immigration strategies if necessary. It also helps employers assess whether any beneficiaries may qualify for a national interest exception, prepare supporting evidence for exception requests, and communicate changes to affected employees to manage expectations and bolster compliance.

      Employers are strongly encouraged to work closely with immigration counsel to identify impacted employees and develop contingency plans. Doing so could help minimize operational disruptions and support ongoing compliance as further details emerge.

      Key Highlights

      On October 20, 2025, the USCIS published its long-awaited guidance on how the agency will enforce the new $100,000 fee on certain H-1B petition filings, as stipulated by the proclamation. The guidance confirms that the new fee applies only to H-1B petitions filed at or after 12.01am EDT on September 21, 2025, on behalf of beneficiaries who:

      • Are outside the United States and do not have a valid H-1B visa, OR

      • Are the beneficiary of an H-1B petition requesting consular notification, port of entry notification, or pre-flight inspection regardless of whether the beneficiary is inside or outside of the United States.

      The guidance further clarifies H-1B petitions requesting an extension, amendment, change of status, or change of employer will not be subject to the new fee. However, if USCIS determines that the beneficiary is ineligible for the change of status, amendment, or extension, the new fee will apply and must be paid before the agency approved the petition. It remains unclear whether the $100,000 fee applies to H-1B beneficiaries who hold a valid H-1B visa if they are the beneficiary of a new petition while outside of the United States.

      Impact of International Travel

      The USCIS guidance makes clear that if an H-1B beneficiary whose petition was approved without the $100,000 fee requirement subsequently travels internationally, they will not become subject to the fee as a result of that departure when they apply for a visa abroad based on the approved petition or seek re-entry into the United States on a valid H-1B visa.

      National Interest Exceptions

      In “exceptionally rare” cases, the Secretary of Homeland Security may waive the $100,000 payment requirement for H-1B petitions if the beneficiary’s presence is deemed to be in the national interest, no qualified U.S. worker is available to fill the role, the individual poses no threat to national security or welfare, and the payment would significantly undermine U.S. interests. Employers seeking this exception must submit a detailed request with supporting evidence to H1BExceptions@hq.dhs.gov, and petitioners must obtain approval for national interest exception prior to submitting an H-1B petition that is subject to the new fee. At this time, the USCIS has not yet provided guidance on the specific types of evidence it considers persuasive in national interest exception requests.

      Payment of the New Fee

      Payment of the $100,000 fee must be made on the U.S. Department of Treasury’s online portal at pay.gov prior to filing the H-1B petition with USCIS. At the time of filing, petitioners must include either the proof of payment from pay.gov or documentation of a DHS-approved national interest exception. The USCIS guidance indicated that petitions submitted without one of these will be denied.

      KPMG LAW LLP INSIGHTS

      Legal Developments and Next Steps

      Two federal lawsuits are currently underway challenging the proclamation.4 Both lawsuits seek a declaratory judgment striking down the proclamation and a permanent injunction barring its implementation. As litigation unfolds, the way the proclamation is enforced could change rapidly.

      KPMG Law LLP is actively monitoring all developments related to the proclamation and will continue to provide updates as the situation evolves. Affected parties should continue to monitor developments tied to the proclamation and consult with their qualified immigration advisers or with a member of the immigration team at KPMG Law LLP in Canada (see the Contacts section).

      FOOTNOTES:

      1  USCIS, H-1B Specialty Occupations, updated on October 20, 2025. See also USCIS, H-1B FAQ, release date September 21, 2025).

      2  Ibid.

      3  Ibid.

      4  Chamber of Commerce v. United States Department of Homeland Security, et. al., Case No. 1:25-cv-03675 (D.D.C., filed October 16, 2025); Global Nurse Force v. Trump, Case No. 3:25-cv-08454 (N.D. Ca., filed October 3, 2025).

      Contacts

      Chelsea Hseih
      Chelsea Hsieh

      Partner, US Immigration, KPMG Law LLP

      KPMG in Canada

      sylvia-yong
      Sylvia Yong

      Associate Attorney, U.S. Immigration

      KPMG in Canada

      More Information

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      * Please note the KPMG International member firm in the United States does not provide immigration or labour law services. However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.

      The information contained in this newsletter was submitted by the KPMG International member firm in Canada.

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