When headlines hit about a new $100,000 H-1B visa fee, it caused understandable concern, especially for Canadians and their U.S. employers. USCIS clarified a key detail:
Two Paths to the Same H-1B
1) Change of Status (COS) – No $100K Fee
If you’re already in the U.S. in a valid non-immigrant status, you can switch directly to H-1B without leaving the country. In these cases, the $100K fee does not apply.
Commonly covered categories:
- B-1/B-2, Canadian visitors
- F-1 (OPT/CPT), F-2
- J-1, J-2
- H-4, L-1, L-2, TN
- Cap-exempt H-1B holders
2) Consular Notification – $100K Fee Applies
If you’re outside the U.S., or inside the U.S. but out of status or otherwise ineligible for COS, the case must proceed via a U.S. consulate abroad. This is when the $100K fee applies.
It’s About How You File, Not Where You Are
Despite the wording in the original proclamation, USCIS guidance makes the trigger crystal clear:
The fee does not apply to an amendment, change of status, or extension filing for an alien inside the U.S. It does apply to consular notifications, port of entry notifications, or any petition requiring visa issuance abroad.
Practical effect:
- In-status U.S. applicants (e.g., B-1/B-2, F-1, J-1, H-4, TN, etc.) are generally exempt when filing as COS.
- Overseas or out-of-status applicants will face the $100K fee via consular processing.
Watchouts that can flip COS → Consular:
- Status expires before filing
- International travel while the petition is pending
Market Impact
Historically, a substantial share of new H-1Bs are requested as consular notifications. Those cases will now be significantly more expensive for employers. Expect the next lottery to tilt toward domestic candidates who qualify for Change of Status, with relatively fewer overseas entries.
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JEREMY L. RICHARDS is the founding partner of Richards and Jurusik and has dedicated his career to U.S. immigration law, with a specialized focus on assisting Canadian and Mexican citizens under the United States-Mexico-Canada Agreement (USMCA) to work and live in the United States. (Full Bio)
