H-1B $100,000 Fee Explained: Who Pays, Who Doesn't, and What USCIS Just Clarified
The Trump administration has been making waves with its changes to the H-1B visa program, a popular visa category for foreign workers with specialized skills. One of the most significant changes has been the introduction of a $100,000 fee for certain H-1B petitions. However, there has been confusion about who is required to pay this fee and under what circumstances. Recently, U.S. Citizenship and Immigration Services (USCIS) clarified the rules, and in this article, we will break down who pays, who doesn't, and what USCIS just clarified.
Background on the $100,000 H-1B Fee
The $100,000 fee was introduced as part of the Trump administration's "buy American, hire American" executive order, which aimed to prioritize American workers and reduce the number of foreign workers in the U.S. The fee applies to H-1B petitions filed by employers who are required to pay the prevailing wage to H-1B workers.
The fee was initially introduced in 2020, but there was confusion about its application, particularly regarding existing visa holders and new petitions. The new clarification by USCIS aims to provide clarity on this issue.
Who Pays the $100,000 H-1B Fee?
According to USCIS, the $100,000 fee applies to new H-1B petitions filed for foreign workers who are not currently in the United States. This includes:
- New petitions for foreign workers outside the US: If an employer files an H-1B petition for a foreign worker who is not currently in the United States, the employer must pay the $100,000 fee.
- Change of status petitions: If an employer files a change of status petition for an H-1B worker who is currently in the United States on a different visa status (e.g., from an F-1 student visa to an H-1B visa), the employer must pay the $100,000 fee.
Who Doesn't Pay the $100,000 H-1B Fee?
There are several exemptions to the $100,000 H-1B fee:
- Existing H-1B visa holders: If an employer files an H-1B petition for an existing H-1B visa holder who is already in the United States, the employer is not required to pay the $100,000 fee. This includes extensions, amendments, or changes to existing H-1B petitions.
- H-1B transfers: If an employer files an H-1B transfer petition for an existing H-1B worker who is transferring to a new employer, the new employer is not required to pay the $100,000 fee.
- Cap-exempt petitions: Certain H-1B petitions are exempt from the cap, such as those filed by universities, research organizations, and government agencies. These petitions are also exempt from the $100,000 fee.
What USCIS Just Clarified
In a recent update, USCIS clarified that the $100,000 fee applies only to new petitions for foreign workers outside the United States. This clarification aims to reduce confusion and ensure that employers understand their obligations when filing H-1B petitions.
USCIS also emphasized that the fee is not required for:
- Extensions of existing H-1B petitions: If an employer files an extension petition for an existing H-1B worker, the employer is not required to pay the $100,000 fee.
- Amendments to existing H-1B petitions: If an employer files an amendment petition for an existing H-1B worker, the employer is not required to pay the $100,000 fee.
Impact on Employers and Foreign Workers
The $100,000 H-1B fee has significant implications for employers and foreign workers. For employers, the fee can be a substantial additional cost, particularly for those who frequently hire foreign workers. However, the clarification by USCIS provides some relief for existing visa holders and employers who file extensions or amendments.
For foreign workers, the fee may impact their ability to secure an H-1B visa, particularly if their employer is not willing or able to pay the fee. However, existing visa holders can breathe a sigh of relief, as they are exempt from the fee.
Conclusion
The $100,000 H-1B fee is a significant change to the H-1B visa program, but understanding who pays and who doesn't can help employers and foreign workers navigate the complex landscape. USCIS's recent clarification provides much-needed clarity on this issue, and employers and foreign workers should take note of the exemptions and requirements.
As the H-1B visa program continues to evolve, it's essential to stay informed about changes and updates. Employers and foreign workers should consult with immigration attorneys and experts to ensure compliance with the latest regulations and to make informed decisions about H-1B petitions.
