Do You Have to Pay $100,000 for H-1B? Three October 2026 Stories Getting Mixed Up With One Fee

As of this writing (October 5, 2026), the $100,000 H-1B proclamation fee is not actually being collected: two federal judges have ruled the policy invalid, and petitions are being filed without paying this fee.

In short

• The $100,000 proclamation fee is blocked by two separate court rulings, despite the proclamation being extended through September 2027
• The fee applies only to consular processing of H-1B abroad — extensions and in-country changes of status are exempt
• The proposed $103,265 rule isn’t in effect yet: it needs a final published version plus a further 30 days before it can take effect
• If both fees were to apply to a hire from abroad, the combined total could theoretically exceed $200,000
• A new executive order from September 18 requires employers with layoffs to justify how a new H-1B position differs from the eliminated ones

Is the $100,000 Proclamation Fee in Effect or Not

The administration has extended the proclamation imposing the $100,000 H-1B fee — reportedly through September 2027 — but that doesn’t mean payment is required right now. The fee has been blocked by a court ruling: a federal court found the fee policy invalid, and the government tried to keep collecting the fee while it appealed. The First Circuit Court of Appeals denied that request, so petitions can still be filed without paying the $100,000.

Later, a different federal judge — Haywood S. Gilliam Jr. of the District Court for the Northern District of California — separately vacated the $100,000 fee for new H-1B holders. That ruling also voids the September 2026 proclamation itself, the one that had extended the fee. The judge found the policy arbitrary and capricious: the responsible agency hadn’t considered alternatives or weighed the interests of employers who had already relied on the prior rules. The court also noted that fees like this are rulemaking actions requiring a notice-and-comment process, not something that can simply be imposed by proclamation. The plaintiffs demonstrated a risk of irreparable harm from blocking H-1B hiring.

The judge found the policy arbitrary and capricious: the responsible agency hadn’t considered alternatives or weighed the interests of employers who had already relied on the prior rules.

So even with the extension through 2027, the proclamation fee remains struck down and unenforceable under two separate court rulings at once — the formal extension of its term doesn’t lift that block.

Who the $100,000 Fee Actually Applies To

The $100,000 fee applies only to H-1B petitions involving consular processing — that is, when the applicant gets the visa through a U.S. consulate or embassy abroad. Employers often assume the fee touches every H-1B petition, but that’s not accurate: it’s limited specifically to consular-processing cases.

Applicants who were already in the U.S. and filed for an extension of status or a change of status are not subject to the fee. The same goes for anyone who already held an H-1B before. In other words, extensions, in-country changes of status, and cases involving a prior H-1B are all carved out from the fee.

What to Do If USCIS Sends a $100,000 RFE and the Payment Link Doesn’t Work

A telling case: an employer filed a petition for an employee located abroad, anticipating that payment of $100,000 might end up being required. After winning the lottery, the petition was filed without that fee — and USCIS responded with a Request for Evidence (RFE) demanding payment of $100,000. In this particular case, the response deadline was set for October 6, 2026 — in every individual case, the deadline is stated in the USCIS notice itself.

Even though the proclamation fee has been ruled invalid by the courts and is blocked, the employer decided to go ahead and try to pay anyway, just in case — that’s how much the lottery selection mattered to them. But the payment link listed in the RFE itself doesn’t work: there’s simply nowhere to pay.

But the payment link listed in the RFE itself doesn’t work: there’s simply nowhere to pay.

The strategy in a situation like this is to wait until early October and check whether a working link appears. If payment remains unavailable, the only option is to respond to the RFE by stating that the proclamation fee has been struck down by the courts, while noting the employer is willing to pay. In cases like this, employers should consult closely with an attorney before deciding on the next step.

The Proposed $103,000 Fee: How It Differs From the $100,000

The $103,265 fee is a separate proposed rule, published in the Federal Register on August 25 for notice and comment, and it has nothing to do with the $100,000 proclamation fee. It’s a draft rule, not a current payment obligation: for it to take effect, DHS must receive and process all comments, then publish a final version that would become effective no sooner than 30 days after publication.

The new rule targets H-1B cap-subject petitions, including petitions filed under the master’s cap. A telling example: an F-1 student working for a company on OPT or STEM OPT — if that applicant is selected in the H-1B lottery and the rule has taken effect by then, they would owe $13,000 — a separate, new fee for cap petitions, not the $100,000 proclamation fee, because a change of status is processed inside the U.S., without consular procedure.

Employers who are cap-exempt are not subject to this proposed rule.

$100,000 Proclamation Fee vs. the Proposed $103,265 Fee

Criteria	$100,000 fee (proclamation)	$103,265 fee (proposed rule)
Status	Blocked by courts, proclamation extended through 2027	Proposed rule, in the comment period
Who it applies to	Consular processing of H-1B abroad	H-1B cap petitions, including master’s cap
Cap-exempt employers	Not specifically addressed	Not subject to the fee
In-country change of status (e.g. from F-1/OPT)	Does not apply	Applies if the rule takes effect

Who Pays the $13,000 H-1B Cap Fee, and Who Doesn’t

The new $13,000 fee under the proposed rule applies to H-1B cap petitions, including petitions filed under the master’s cap.

Who is not subject to the $13,000 fee:

• Cap-exempt employers — universities, nonprofit research organizations, and other employers exempt from the H-1B cap are not covered by this rule.
• Routine extensions of an existing H-1B petition — no fee required.
• Change of employer when moving from one H-1B to another — also no fee here: nothing changes for these cases.

In theory, a situation could arise where an employer files a petition for a candidate abroad through the H-1B lottery: if both fees apply at once, the total could exceed $200,000.

How Much H-1B Could Cost If Both Fees Applied

If an applicant is selected in the H-1B lottery and both fees apply to the petition at the same time, the total could, in theory, exceed $200,000 — but that’s a hypothetical overlap between a fee that’s currently blocked by the courts and a fee from a proposed rule that hasn’t taken effect yet.

The cost differs for hiring from abroad: if an employer files a petition for someone outside the U.S. and processing goes through a consulate under the H-1B lottery, that’s the scenario where this over-$200,000 figure could come up. Meanwhile, ordinary extensions of status or a change of employer inside the U.S. don’t carry these costs — these are two separate fees tied to two separate obligations, and payment isn’t required in every case. This is a hypothetical scenario: the proclamation fee is currently blocked by the courts, and the proposed rule’s fee hasn’t taken effect, so a total above $200,000 isn’t a current obligation — it’s an estimate for if both rules were to take effect at the same time.

The Layoffs Executive Order: How It Could Affect an H-1B Filing

A third executive order, published September 18, isn’t about fees at all — it’s about the integrity of the H-1B program and concerns employers who have conducted layoffs. The directive instructs the State Department and the Department of Labor to monitor such employers more closely and collect data on them. The Wage and Hour Division is directed to start reviewing LCA filings for a pattern: whether a company is filing H-1B petitions against a backdrop of layoffs.

Layoffs by themselves don’t close off a company’s path to filing an H-1B petition. The petition can still be filed, but the employer may need to explain how the position being offered to the foreign worker differs from the roles affected by the layoffs. This requirement goes beyond the current H-1B rules: today’s non-displacement provisions apply only to companies already found to be H-1B-dependent or willful violators of the program.

The petition can still be filed, but the employer may need to explain how the position being offered to the foreign worker differs from the roles affected by the layoffs

A similar logic already applies in PERM labor certification: an employer cannot file if among the qualified candidates for the position were workers laid off within 6 months before filing PERM. But there, the look-back period is 90 days under current rules, while the new order extends it to a full year. When conducting layoffs or job cuts, companies are advised to keep job descriptions, salary data, work location records, restructuring documentation, and other business records on hand — in case they need to justify the difference between the eliminated position and the new one.

What to Keep on File If You’ve Had Layoffs Before Filing an H-1B

• Job descriptionsrequiredBefore and after restructuring
• Salary datarequiredFor both the eliminated and the new position
• Work location informationrequired
• Company restructuring recordsrequired
• Other business documentationTo justify the difference between the positions

Frequently asked questions

Can an H-1B petition be refiled if the first one was rejected for not paying the $100,000 fee

That exact scenario isn’t addressed directly, but since the fee has been ruled invalid by the courts and petitions can be filed without paying it, a rejection based solely on nonpayment of this fee shouldn’t be an obstacle — as long as every other petition requirement is met.

What happens if the proposed $103,000 fee gets dropped after the final rule is published

The rule hasn’t taken effect yet: DHS first has to process the comments and publish a final version, which would take effect no sooner than 30 days after publication. Until that happens, there’s no obligation to pay, and the final content of the rule could still change based on the comments received.

Does an H-1B petition need to be refiled or reworked if the position changed after layoffs at the company

Layoffs by themselves don’t close off a company’s path to filing a petition, but the employer may need to explain how the new position differs from the roles affected by the layoffs. It helps to keep job descriptions, salary data, and restructuring records on hand in advance for this purpose.

Do the new layoff-review rules apply equally to every H-1B employer

No: the current non-displacement requirements apply only to companies already found to be H-1B-dependent or willful violators of the program. The new executive order extends the layoff look-back period to a full year, compared with 90 days under existing PERM rules.

How much time does an employer have to respond to an RFE demanding payment of $100,000

The deadline is stated in the USCIS notice itself and varies by case. In the case described here, the response deadline was set for October 6, 2026, but that isn’t a universal cutoff — the date on your own RFE is what matters.

Could a company be subject to both the $13,000 fee and the layoff review at the same time

These are two independent rules with different triggers: the $13,000 fee applies to cap petitions, while the layoff review applies to employers that have cut staff, regardless of whether they’re paying that fee. In theory, both requirements could apply to the same company at once if it has both conducted layoffs and is filing a cap petition.