United States Citizenship and Immigration Services (USCIS) released further guidance yesterday about the new $100,000 H-1B visa fee that was announced via Presidential Proclamation on Sept. 19.
In the guidance, USCIS clarified that the fee WILL NOT apply to H-1B petitions filed at or after 12:01 a.m. EDT on Sept. 21 that are requesting an amendment, change of status, or extension of stay for a foreign national inside the United States. While not expressly stated in the USCIS guidance, this would also generally include petitions requesting a change of employer for beneficiaries who are inside the United States.
USCIS had previously clarified that the fee does not apply to existing H-1B holders, including beneficiaries of petitions that were filed prior to Sept. 21; beneficiaries of currently approved H-1B petitions; as well as those who were in possession of a valid H-1B visa.
The fee will apply to petitions requesting consular notification, port-of-entry notification, or pre-flight inspection, unless a narrow exception is approved based on the H-1B beneficiary’s employment being in the national interest.
The guidance also revealed the criteria for a National Interest Exception, noting that one will be approved when a petitioner demonstrates that:
- The foreign national being in the United States as an H-1B worker is in the national interest;
- No American worker is available to fill the role;
- The worker does not “pose a threat to the security or welfare of the United States;” and
- Requiring the petitioning employer to make the payment on the foreign national’s behalf would “significantly undermine the interests of the United States.”
According to USCIS, the National Interest Exception must be requested and approved before filing the H-1B petition. Moreover, the guidance provided instructions about how, when and where the $100,000 payment should be made.
Several lawsuits have already been filed against the administration challenging the $100,000 fee.
The interpretation and guidance related to the “Restriction on Entry of Certain Nonimmigrant Workers” proclamation is a rapidly-evolving and fluid situation that the attorneys at Garfinkel Immigration are closely monitoring. The team will continue to alert clients as additional information on implementation becomes available.