H-1B $100,000 entry fee explained: Who pays, who’s exempt, and what’s still unclear?

The Indian Express spoke to immigration attorneys in the US to unpack its implications.

For those who already hold an H-1B visa stamp, will the $100,000 fee apply if they travel abroad and re-enter the US?

This will not impact the individuals who are already on a valid H-1B visa.

A US Citizenship and Immigration Service Memorandum dated September 20 stated, “This proclamation only applies prospectively to petitions that have not yet been filed. The proclamation does not apply to aliens: who are the beneficiaries of petitions that were filed prior to the effective date of the proclamation, are the beneficiaries of currently approved petitions, or are in possession of a validly issue H1B non-immigrant visas”

“There is news coming in that it might not impact people who are already having an H-1B visa, but there is confusion. In our attorney groups, there is a lot of debate on the way the language is worded, and a lot depends on how the government wants to interpret this,” Texas-based attorney Chand Parvathaneni told The Indian Express in the early hours of Sunday.

Echoing this, Houston-based immigration lawyer Rahul Reddy said, “We will come to know on Sunday when people try to enter, because it’s going into effect on Sunday at midnight, 12:01.” He added that major tech companies have already sounded the alarm: “Amazon, Microsoft, they’ve all warned their employees not to travel.”

For individuals who get their H-1B visa stamped after September 21, will the $100,000 be a one-time fee at the time of stamping, or will they be required to pay it annually?”

Reddy recalled, “When Trump was signing this executive order, they said that it was going to be every year. But when we look into the present proclamation, it says anytime a person is trying to enter into the United States, it is applicable.”

Parvathaneni added, “It is a $100,000 annual payment, but again, this is only applicable when somebody travels out of the country and travels back in.” He also emphasised the lack of clarity: “How are they going to pay the Secretary of State? How are they going to pay the US government? Things are not clear at this point yet.”

For those already on an H-1B in the US who only need an extension, does the $100,000 fee apply?

No. The fee does not apply to in-country status changes, extensions, or transfers.

Parvathaneni explained: “If anybody is in the US and either they want to go through an H-1B transfer, they want to change their companies or they’re going through an extension process… as long as all these things are happening while somebody is in the U.S., these people are not impacted.”

Reddy elaborated that the proclamation was carefully crafted to avoid areas where presidential authority is limited. “The administration does not have authority to change the rules of the H-1B. Only the Congress… has the authority. What the administration has authority over…anytime a person is entering into the country, it is a security issue.”

For F-1 students planning to change to H-1B while staying in the US, does the $100,000 fee apply?

“As long as all these things are happening while somebody is in the US, these people are not impacted,” said Parvathaneni. Reddy echoed: “If you’re an F-1 student trying to convert into H-1B within the U.S., it’s not applicable.”

What if an F-1 student outside the US gets selected in the H-1B lottery?

In that case, yes — the $100,000 fee will likely apply. Parvathaneni said, “If somebody is outside the US and the company is filing for a H-1B, they are supposed to pay a $100,000 fee right away.”

Reddy contextualised the policy as one designed keeping specific recruitment models in mind. “This seems to be more targeted to Indian companies because mostly Indian companies recruit new people from India or outside the country.”

Is there any exemption?

Very few and the language is vague. Reddy explained, “They said if there is any national interest… they may exempt those individuals from this $100,000.” But what qualifies as ‘national interest’ remains undefined. “They could exempt healthcare people, like, for example, a physical therapist,” he added.

Could this push demand toward O-1, L-1 or other US visa categories?

“If somebody is contemplating on going on L-1 as compared to the H-1B… definitely, they will not contemplate on H-1B because companies won’t be willing to pay that $100,000,” Reddy said.

He explained the trade-offs: “If you go on an L-1 visa with a company X, and you want to change that to a different company, you can’t. However, if you go on H-1B… you can change from company A to company B.” He also flagged a compliance risk: “The Department of Labor regulations say that any money that the company paid to the government as fees cannot be collected from the individual.”

What are the long-term implications for international students hoping to build careers in the US?

This could reshape the entire STEM immigration pipeline. “If this gets implemented in the current fashion, it is going to impact the technology industry and also the opportunities for students,” warned Parvathaneni.

Reddy agreed, but noted a short-term upside for current OPT students: “Now the pool is smaller… they probably will be celebrating right now.” However, he also acknowledged the broader cost: “A lot of these people, they work for years… with the hope that, okay, my company is going to take me to the United States on H-1B. Now, of course, they are not going to spend $100,000.”

What legal challenges are expected?

Attorneys are already preparing cases. “This is what will happen,” said Parvathaneni. “More than likely, lawsuits are going to get filed because that’s already in progress. If courts issue a temporary restraining order, people will have some breathing space.”

Reddy compared it to the 2017 Muslim travel ban: “They made it sound like a travel restriction. That way, they can argue that the presidential proclamation is good enough for this purpose, not a Bill.”

“They exactly tried to copy it in such a way because it’s going to be tested… It will be tested in the courts.” he added.

What is a proclamation, legally? Is it a final law?

No, it is not legislation, but it does carry legal authority — until challenged. “A presidential proclamation is not a law,” explained Parvathaneni. “It is an order to federal agencies… As long as it is not an overreach of his powers, it is valid.”

Reddy clarified further: “Only Congress has the authority to change the rules of H-1B… But they [Trump administration] are saying, ‘this is about security,’ which is where the president has authority.” Until courts weigh in, the proclamation stands, and students, workers, and companies will have to plan around it.