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Update on H-1B Proclamation

On October 20, U.S. Citizenship and Immigration Services (USCIS) released new guidance on the presidential proclamation issued Sept. 19 that imposed a $100,000 fee on H1-B visas. (Read our initial advisory on the proclamation here.)

This new guidance provides additional clarity on who is subject to the increased fee, how and when to make the payment, and exceptions granted by the department.

The new guidance states the fee will apply in the following cases:

  • When the requested action on the petition is to notify a U.S. consulate, port of entry, or pre-flight inspection of the petition approval, regardless of whether the beneficiary was in the United States at the time or filing or outside the United States.
  • Consular notification H-1B petitions filed after the effective date of the Proclamation will also be subject to the $100,000 fee if a change of status, amendment or extension is requested and denied and instead approved only for consular notification, USCIS will not approve the underlying H-1B petition without payment of the $100,000 fee.

According to the new guidance, the fee will not apply in the following circumstances:

  • Change of Status (COS) petitions, whereby the beneficiary changes from one visa status to H-1B while remaining in the United States will not be subject to the proclamation or the $100,00 fee – for example, a beneficiary on Optional Practical Training (OPT) moving to H-1B status through a COS filing. Note that most H-1B petitions are filed as changes of status.
  • H-1B petitions that are approved for an extension of stay, amendment, or for a change of employer will not be subject to the proclamation or the associated $100,000 fee.
  • If a foreign national whose petition is approved without the $100,000 fee being required subsequently departs the United States, they will not become subject to the fee as a result of that departure.

It is still unclear if the fee is required of foreign nationals with an existing valid H-1B visa if they are the beneficiary of a new petition that would otherwise be subject to the proclamation. For example, it is not yet known whether the proclamation and associated fee would apply to a foreign national with a valid H-1B visa from a previous employer and an approved consular notification petition filed by a new employer.

The new guidance regarding eligibility for the national interest exception introduces a high threshold that includes showing that no U.S. worker is available for the role, and, in a departure from the proclamation, does not provide for exceptions on a company-wide or industry-wide basis. It also clarifies that the exemption must be granted before the H-1B petition is filed.

As of October 21, two lawsuits have been filed challenging the legality of the proclamation. Duke Visa Services will continue to closely monitor the situation and will provide additional updates as they become available.