USCIS Update: Who the $100K Fee Actually Applies To

USCIS has now published detailed guidance clarifying who pays, when, and how.

  • Applies to new H-1B filings on or after Sept 21, 2025 only when the worker is outside the U.S. or the petition results in consular processing.
  • Change-of-status filings inside the U.S. (including F-1 to H-1B) are not subject to the fee if the case does not involve a visa stamp.
  • The fee must be paid via Pay.gov before filing, and the receipt attached to Form I-129.
  • Exceptions are narrow, granted only if the role is in the national interest, no qualified U.S. worker is available, there are no security concerns, and payment would harm U.S. interests.
  • Travel matters: if you leave the U.S. before activation, your case may convert to consular processing and trigger the fee.
  • Legal challenges are ongoing;

What This Means

For F-1 / OPT / STEM-OPT students:
If your employer files an H-1B change-of-status petition while you’re in the U.S., you’re not affected by the $100K fee.

Example: an OPT engineer changes status → H-1B in the U.S. - no fee. If that same case becomes consular after travel, the fee applies.

The Bigger Picture: What Was Already Changing in 2025

  • Cap-Gap Extension: as of Jan 17 2025, F-1 status and OPT authorization now extend automatically until April 1 of the following fiscal year, easing timing pressure.
  • H-1B Modernization Rule: implemented Jan 2025, refining “specialty occupation” definitions and streamlining adjudications, changes that indirectly help F-1 students facing delays.

How the $100K Rule Affects Common OPT Paths

1.Change-of-Status Inside the U.S. (Lowest Risk)

File H-1B while remaining in the U.S., no fee, smooth status change on Oct 1.

2. Consular Processing / Re-Entry

Filed abroad → fee applies. Avoid unless absolutely necessary.

3. Travel During Pending Petition

Leaving the U.S. may flip your case to consular processing—coordinate with counsel.

4. Employer Reactions

Some firms are pausing international hiring. Demonstrate value early and explore cap-exempt H-1B, O-1, J-1, or L-1 options.

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Practical Advice: What You Should Do Now (and Next)

Here’s a step-by-step playbook for OPT students / recent grads:

  1. Have backup visa/immigration strategies
    • Cap-exempt H-1B (for universities, research institutions) if your role is with a nonprofit or academic, you may bypass the H-1B cap (and possibly the fee).
    • OPT STEM extension (if eligible) gives you extra time
    • O-1 visa (for extraordinary ability)
    • J-1, TN, L-1 (if intra-company transfers)
    • If employer is open, green card sponsorship early
  2. Plan your timing carefully
    • If possible, file your H-1B petition as a change-of-status* while you are still in the U.S.
    • Avoid letting your authorized F-1 or OPT STATUS expire before a petition is filed.
    • Use the extended cap-gap buffer (to April 1) to cushion against delays. Study in the States
  3. Work with employers to structure the petition
    • Make sure your employer agrees to the change-of-status route (not consular)
    • Negotiate early on whether they will cover legal or unexpected costs
    • Minimize travel while a petition is pending; if travel is unavoidable, consult counsel and plan it strategically
  4. Monitor legal challenges & exceptions
    • This Proclamation is likely to face lawsuits; stay informed. Forbes
    • In very special cases, your petition might get a national interest waiver or exemption from the fee
  5. Minimize travel and maintain lawful presence
    • Avoid leaving the U.S. if your status is in transition
    • Keep your records clean
    • Stay in close communication with your DSO / immigration counsel
  6. Be ready for employer pushback
    • Some employers may balk at the $100K cost. Be prepared to justify yourself (impact, revenue, retention, project value)
    • If an employer refuses, consider startups or smaller firms who may be more flexible

Bottom Line

For most students already in the U.S., this update brings relief: your F-1 to H-1B change-of-status remains fee-free.
But for employers filing abroad, and students planning travel, the stakes just rose.

Success now depends less on luck, more on strategy and preparation.

If you need to map your visa options or adapt hiring plans, contact us for a tailored session.

*The Proclamation’s reach into change-of-status is not entirely settled. Some interpretations of the Proclamation suggest its fee/entry restrictions mostly target those outside the U.S, but that isn’t entirely definitive.