The $100k H-1B fee, explained for employers

The $100k H-1B fee is one of the most talked-about changes to employer sponsorship in years, and it's also one of the most misunderstood. It does not apply to every H-1B petition, and its legal status is still moving. This explainer lays out what the fee is, which petitions it covers, who is exempt, where the litigation stands, and how HR can weigh sponsorship decisions without overreacting.

This topic is developing and the facts here are current as of July 2026. A federal court has ruled on the fee and the government has appealed, so the status can change on short notice. Treat this as a snapshot, confirm the current position on the official USCIS and Department of Labor pages before you file, and check with counsel on any specific case.

What the $100k H-1B fee is (a measured, dated summary)

The $100k H-1B fee is a one-time $100,000 payment that must accompany certain new H-1B petitions, introduced by a presidential proclamation signed September 19, 2025 titled "Restriction on Entry of Certain Nonimmigrant Workers." It applies to petitions filed after 12:01 a.m. Eastern Time on September 21, 2025, and the petitioning employer pays it, not the worker. As of July 2026, it is a per-petition charge, not an annual one, and it does not replace the standard H-1B government filing fees, which still apply on top.

The key detail that gets lost is that the fee is tied to bringing a new H-1B worker into the U.S. from abroad, not to H-1B status in general. In practice, USCIS has applied the $100,000 payment to new petitions that require consular notification, port-of-entry notification, or pre-flight inspection, meaning cases where the beneficiary is outside the country and needs to obtain the visa at a consulate before entering. That framing is what separates the petitions the fee touches from the many it does not.

For an employer, the number is large enough that it changes the math on a single sponsorship, so it's worth knowing exactly where your case falls before you assume it applies. The next section breaks down the line between covered and exempt petitions.

Who the $100k H-1B fee applies to and who is exempt

The $100k H-1B fee applies to new H-1B petitions for beneficiaries who are outside the U.S. and need consular processing to enter, and it exempts most petitions for people already here. If your candidate is abroad, has no current H-1B status, and would enter on a newly issued H-1B visa, the petition is the kind USCIS has treated as covered. If your employee is already in the U.S. and you're filing to change, extend, or amend their status, the fee has not applied.

Because the exemptions carry the practical weight for most HR teams, they're worth stating plainly. The fee has not applied to the following situations:

• Petitions filed before 12:01 a.m. Eastern Time on September 21, 2025.
• Change-of-status petitions for someone already in the U.S., such as an F-1 student moving to H-1B without leaving the country.
• Extensions and amendments of H-1B status for a worker already in the U.S.
• People who already hold a valid H-1B visa or H-1B status.
• H-1B renewals where the underlying H-1B was granted before the September 21, 2025 proclamation. If the H-1B was first granted after that date, a renewal has been treated as exempt only where it is a change of status or the $100,000 payment was already made on the original petition.

There is also a national interest exception. The Department of Homeland Security Secretary may waive the fee where a specific worker's presence in the U.S. as an H-1B holder is found to be in the national interest, and employers request that determination before filing. The U.S. Department of State H-1B FAQ and USCIS guidance describe how the payment interacts with consular processing. It's a discretionary, case-by-case route rather than a broad category, so it doesn't change the default for most petitions, but it exists for cases where an employer can make that showing.

Reading the covered and exempt cases side by side makes the pattern clearer:

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Where the $100k H-1B fee stands legally right now

As of July 2026, the $100k H-1B fee is being collected for covered petitions while its legality is on appeal, after a federal court first struck it down and then paused its own ruling. In June 2026, a federal district court in Massachusetts found the USCIS policy implementing the fee unlawful, concluding that a charge of this size functions as a tax that only Congress can impose and that the executive branch had exceeded its statutory authority under the Administrative Procedure Act, the federal law that governs how agencies make rules. Within days, the same court stayed its own decision, and the government took the appeal to the First Circuit Court of Appeals.

The practical effect of that sequence is that the fee remains in effect for the petitions it covers while the appeal proceeds. A ruling that struck the fee down is not currently operative, because the stay keeps USCIS collecting the payment pending the appellate outcome. For employers, that means you can't yet count on the fee going away, and you also can't assume the current position is the final word.

Because this is genuinely unsettled, the responsible move is to plan against the fee as it stands today while watching for a change. We're not predicting an outcome here: the litigation could resolve in more than one direction, and separate challenges to related H-1B rules are moving on their own timelines. Confirm the live status on the official USCIS newsroom before filing any petition where the fee might apply, since a snapshot like this one can age quickly.

What employers should weigh now: alternatives and planning

For employers, the practical question isn't whether to sponsor H-1B workers at all, it's how to structure timing and which cases still make sense given the fee. Sponsorship remains the right call in plenty of situations, especially when the candidate is already in the U.S. and the petition is exempt, or when the role is important enough that the all-in cost is justified even with the payment. The fee reshapes the decision for a specific slice of hires: new petitions for candidates abroad who need consular processing.

Timing and candidate profile are where HR has the most room to plan. A candidate already in the U.S. on F-1 with OPT work authorization, or someone holding another status who can change to H-1B without leaving the country, may keep the petition in the exempt lane, which is a meaningful planning input rather than a reason to rule anyone out. For candidates abroad, it's worth checking early whether a national interest exception is realistic for the role before assuming the full payment applies.

It also helps to look at the H-1B alongside other work-visa routes rather than in isolation. Depending on the candidate's background, categories like the O-1A for those with strong records of achievement, the L-1 for internal transfers within a multinational company, or a green card path may fit the situation and timeline, and our guides to the alternatives if a candidate isn't selected in the H-1B lottery and the types of U.S. work visas lay out the options. The point is to weigh routes on the merits of each hire, not to abandon a category, and to keep the full H-1B sponsorship cost in view when you compare.

If you're building or revisiting a sponsorship program, our employer guides to visa sponsorship and how to sponsor a foreign worker cover the full sequence, and the H-1B visa guide covers the requirements behind the visa itself.

Tukki is a U.S. immigration provider focused on employment-based visas, including the H-1B. For HR teams weighing exposure to the $100k fee across one hire or a portfolio, Tukki pairs dedicated attorney support with a platform that shows where each petition falls, what it will cost, and where every case stands in one view. If you want a clear read on which of your petitions the fee touches and what your alternatives are, talk with our team.

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