Update on H-1B $100K Fee – Second Lawsuit Filed Challenging Fee; USCIS Issues Implementation Guidance. 

U.S. Chamber of Commerce H-1B Fee Litigation 

On October 16, 2025, a second federal lawsuit was filed challenging the $100,000 H-1B fee, this time by the U.S. Chamber of Commerce (U.S. Chamber). The lawsuit, filed in the District Court for the District of Columbia, argues that the move unlawfully rewrites immigration law, usurps Congress’s legislative power, and threatens to devastate the U.S. economy.  

Specifically, the Chamber warns that the $100,000 fee would, as a practical matter, preclude startups, universities, and hospitals from obtaining H-1B nonimmigrant status for key global talent; reduce participation in the H-1B lottery; and drive innovation and job creation overseas. 

The decision by the U.S. Chamber to bring the lawsuit significantly broadens the scope of the legal challenge as, according to its complaint, the organization represents “more than 3 million companies and professional organizations of every size, in every industry sector, and from every region of the country.” 

The U.S. Chamber seeks injunctive relief before the March 2026 H-1B lottery, arguing that uncertainty over costs is already disrupting business planning. A preliminary hearing is expected in the coming weeks. 

USCIS Issues Guidance on $100,000 H-1B Fee. 

Shortly after the second lawsuit was filed, USCIS provided additional guidance with respect to implementation of the $100,000 H-1B fee. The guidance, posted on USCIS.gov without notice, provides as follows: 

Who Must Pay 

• The $100,000 fee applies to new H-1B petitions filed on or after September 21, 2025, on behalf of beneficiaries who are outside the United States AND who do not have valid H-1B visas. 

• It also applies if petitions request consular notification or if USCIS denies a request for a change or extension request, in which case the fee must be paid before the petition can be approved for consular processing. 

Who Does Not Have to Pay: 

• Existing H-1B visa holders or renewals. 

• Petitions filed before the effective date. 

• Amendments or extensions approved while the worker remains in valid H-1B status. 

How to Pay the Fee 

• The $100,000 payment must be made through pay.gov before filing. 

• Proof of payment or evidence of an approved exception must accompany the petition. 

• Petitions without proof of payment or an exception will be denied. 

Limited National Interest Exception 

The guidance clarifies that National Interest Exceptions will be granted only in rare cases in which: 

1. No qualified U.S. worker is available; 

1. The foreign worker poses no security risk; and 

1. Requiring payment would undermine U.S. interests. 

All National Interest Exception requests must be submitted to:  

H1BExceptions@hq.dhs.gov. 

Looking Ahead 

At Meltzer Hellrung, we are closely monitoring the litigation challenging the $100,000 H-1B fee, as well as efforts by USCIS to implement it, and we will keep you advised of the latest developments. We continue to believe the fee is both unconstitutional and violates federal law and we reiterate our recommendation that businesses considering H-1B sponsorship for FY2027 should not change their sponsorship plans.  

Please contact your Meltzer Hellrung professional if you have specific questions about the $100,000 H-1B fee. 

 

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