United States | USCIS updated guidance on $100K H-1B payment and I-129 filing delays related to government shutdown

On Oct. 20, U.S. Citizenship and Immigration Services provided updated guidance on the Restriction on Entry of Certain Nonimmigrant Workers proclamation (H-1B proclamation) mandating that “certain H-1B petitions filed at or after 12:01 a.m. eastern daylight time on September 21, 2025 must be accompanied by an additional $100,000 payment as a condition of eligibility.”

USCIS also provided a separate update on the processing of “H-1B, H-2A, and H-2B related Form I-129 petitions and CW-1 related Form I-129CW petitions during the government shutdown.”

Key Points:

• The USCIS guidance pertaining to the $100,000 fee under the H-1B proclamation includes the following:
  • Who is subject to the $100,000 payment
    • “The Proclamation applies to new H-1B petitions filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, on behalf of beneficiaries who are outside the United States and do not have a valid H-1B visa. The Proclamation also applies if a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, requests consular notification, port of entry notification, or pre-flight inspection for an alien in the United States.”
  • How to pay the $100,000 payment
    • “Petitioners should submit the required $100,000 payment using pay.gov.”
  • When to pay the $100,000 payment
    • “Payment must be made prior to filing a petition with USCIS, as petitioners must submit proof that the payment has been scheduled from pay.gov or evidence of an exception from the $100,000 payment from the Secretary of Homeland Security at the time of filing the H-1B petition.”
  • Exceptions granted by the Secretary of Homeland Security
    • “In the extraordinarily rare circumstance where the Secretary of Homeland Security has determined that a particular alien worker’s presence in the United States as an H-1B worker is in the national interest, that no American worker is available to fill the role, that the alien worker does not pose a threat to the security or welfare of the United States, and that requiring the petitioning employer to make the payment on the alien’s behalf would significantly undermine the interests of the United States.”
• Extraordinary circumstances exception for I-129-related petition delays during government shutdown: USCIS guidance states, “If an H-1B, H-2A, H-2B, or CW-1 petitioner meets all other applicable requirements and submits evidence establishing that the primary reason they did not timely file an extension of stay or change of status request was due to the government shutdown, we will consider the government shutdown an extraordinary circumstance beyond the petitioner’s control when we determine whether to excuse their failure to timely file the extension of stay or change of status request.”

Additional Information: BAL will continue to monitor developments and will provide essential updates to the public and real-time briefing calls, Q&A, newsletters and more with insights and guidance from our Government Strategies team to in-house professionals who are members of BAL Community. BAL clients are encouraged to consult with their BAL attorney for case-specific guidance.

This alert has been provided by the BAL U.S. Practice Group.

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