H-1B Update

We are writing to provide an important update regarding the new rules impacting H-1Bs. USCIS published new guidance clarifying that last month’s Presidential Proclamation new $100,000 H-1B fee is NOT triggered by a change of status request if the beneficiary is within the United States and maintaining their status.

Below is a summary of the most important takeaways from the latest guidance:

• Current H-1B Employees currently in H-1B status are NOT subject to the $100,000 fee if they depart the U.S., apply for a new H-1B visa, and return to the U.S. to continue working in H-1B status.
• Employers can continue to extend and/or amend the H-1B status of current H-1B employees whose status is expiring or whose terms of employment change. This will NOT trigger the $100,000 fee.
• Employers can continue to hire H-1B employees already in the U.S. working for another employer. Transfers within the U.S. will not trigger the $100,000 fee as long as the individual does not travel internationally during the process.
• While the new rule technically applies a $100,000 fee to next year’s lottery cases, USCIS has clarified that petitions requesting a change of status for individuals already in the U.S. will NOT be subject to the fee. Any international travel for next year’s lottery recipients should be discussed with an attorney in advance to determine if it would trigger the $100,000 fee.
• The guidance above also applies to cap-exempt employers, such as universities.

The $100,000 does apply in the following circumstances:

• The H-1B beneficiary is outside the U.S.;
• The H-1B beneficiary leaves the U.S. while the H-1B petition is pending; or
• USCIS refuses to extend or change the H-1B beneficiary’s status due to an immigration violation (i.e., gaps in authorized stay, criminal issues, or other status violations).

The latest guidance also provides additional information on the “national interest” exception for the $100,000, clarifying that in the above situations when the fee is required, it will only be granted in the “extraordinarily rare circumstance” when, among other things, no American worker is available to fill the role.

There are currently two federal lawsuits challenging President Trump’s Proclamation as an unlawful tax. We expect further updates as courts review the new guidance. In the meantime, the latest guidance is a huge relief, as it clarifies that the $100,000 will not apply in most instances.