H-1B $100,000 Fee: Are NIW and EB-1A Better Alternatives?

The $100,000 H-1B fee, a wage-weighted lottery and court fights have changed the math. See when an EB-2 NIW, EB-1A or O-1A self-petition makes more sense.

IMMIGRATION INSIGHTS

10/22/20265 min read

Since September 2025, the H-1B program has become harder to plan around. A presidential proclamation added a $100,000 payment for many new H-1B petitions. A new rule replaced the random lottery with one weighted by wage level. And throughout 2026, federal courts have been deciding whether the fee can be collected at all.

For many professionals, that uncertainty has turned attention to green card categories that do not need an employer sponsor or a lottery: the EB-2 National Interest Waiver and EB-1A. This guide explains where the H-1B rules stand as of late October 2026, and when a self-petition is the better path.

Key takeaways

The $100,000 H-1B payment was created by Proclamation 10973 in September 2025 and extended through September 21, 2027 by a second proclamation in September 2026.
Under USCIS guidance, the payment generally applies to new petitions for workers outside the US, not to change of status or extensions granted inside the US.
On September 30, 2026, a federal court in California vacated and blocked the policies implementing the fee. The government has appealed, so the situation may change.
The weighted H-1B lottery took effect for the FY2027 cap season, giving higher-wage registrations more entries.
EB-2 NIW and EB-1A let you petition for yourself, with no employer, no labor certification and no lottery. Both have become more demanding, with approval rates under 60 percent in recent quarters.

Where the $100,000 H-1B fee stands

Proclamation 10973, signed September 19, 2025, restricted the entry of H-1B workers unless the petition was accompanied by a $100,000 payment. USCIS guidance issued in October 2025 explained that the payment applies to new petitions filed on or after September 21, 2025 for beneficiaries outside the United States without a valid H-1B visa, and to petitions requesting consular or port-of-entry notification. Petitions for change of status, amendment or extension inside the US were generally exempt if granted.

That exemption matters for international students: an F-1 student who changes status to H-1B inside the US has generally not owed the payment.

The fee has been in court since it began:

In December 2025, a federal district court upheld the fee in a challenge brought by the US Chamber of Commerce.
In June 2026, a federal court in Massachusetts vacated the implementing policies in a case brought by a group of states.
On September 18, 2026, a new proclamation extended the fee through September 21, 2027.
On September 30, 2026, a federal court in the Northern District of California vacated and enjoined the policies implementing both proclamations. The government appealed to the Ninth Circuit in October.

DHS has also proposed a separate fee of $103,265 for cap-subject H-1B petitions, published in the Federal Register in August 2026. It remains a proposal. Because these rules are changing quickly, check current USCIS guidance before relying on any of them.

The wage-weighted H-1B lottery

A final rule published December 29, 2025 and effective February 27, 2026 changed how H-1B cap registrations are selected. Each registration is entered according to the wage level of the offered job: Level IV receives four entries, Level III three, Level II two and Level I one. The FY2027 registration period ran in March 2026, and USCIS reported reaching the cap at the end of that month.

The practical effect is that early-career workers paid at Level I or Level II wages have lower odds of selection than before, even with a strong employer.

Why NIW and EB-1A are drawing attention

The EB-2 NIW and EB-1A categories avoid the main H-1B pressure points:

No employer required. You can file for yourself, and changing jobs does not end your petition.
No labor certification. You skip the PERM process, which can take well over a year.
No lottery. Eligibility depends on your evidence, not on chance.
No $100,000 payment. The proclamation applies to H-1B petitions, not immigrant petitions.
A direct path to a green card. These are permanent residence categories, not temporary visas.

What they cost

For a self-petitioner, the Form I-140 filing fee is $715, plus a $300 Asylum Program Fee. Premium processing, which gets a decision within 45 business days for NIW or 15 business days for EB-1A, costs $2,965 as of March 1, 2026. Adjustment of status, if you are in the US, adds separate fees. Our guide to concurrent filing of I-140 and I-485 covers that stage.

The tradeoff: a higher evidentiary bar

Self-petitions are not easier than the H-1B. They are different. Instead of a lottery, you face a substantive review of your record.

EB-2 NIW requires an advanced degree or exceptional ability, plus proof under Matter of Dhanasar that your proposed endeavor has national importance and that you are well positioned to advance it. NIW approval rates were about 55 percent in Q3 FY2026.
EB-1A requires sustained national or international acclaim, shown through a major award or three of ten criteria plus a final merits review. EB-1A approval rates fell to about 32 percent in Q3 FY2026.

Timing matters too. Regular I-140 processing for NIW has been around 30 months, and the EB-2 Rest of World Final Action Date is April 1, 2025 in the November 2026 Visa Bulletin. EB-1 remains current for most countries.

O-1A as a bridge

The O-1A visa for extraordinary ability is not subject to the H-1B cap or lottery and is not covered by the $100,000 proclamation. It still requires a US employer or agent to petition. Many professionals use O-1A for work authorization while preparing an EB-1A or NIW. See EB-1A, EB-2 NIW, or O-1 for a side-by-side comparison.

Which path fits your situation?

You are an F-1 student or recent graduate in the US. Change of status to H-1B has generally been exempt from the payment, but the weighted lottery may lower your odds at entry-level wages. An NIW filed early can run in parallel. See NIW for F-1 students and OPT.
You are abroad and your employer would need a new H-1B. If the payment is collected again, employers may hesitate. A self-petitioned NIW or EB-1A with consular processing avoids it.
You have a strong research or industry record. You may qualify for NIW now, and possibly EB-1A. Many people with strong evidence file both.
Your record is still developing. Use the time to build the record before you file, and consider O-1A or H-1B in the meantime.

Because USCIS may now deny a petition with missing initial evidence without first issuing a request for evidence, the first filing has to be complete. A HoatPen 1-hour profile consultation will assess whether NIW or EB-1A fits your record today. The $100 fee is credited toward your writing package if you move forward.

Frequently asked questions

Is the $100,000 H-1B fee still in effect?

The proclamation requiring it was extended through September 21, 2027. However, on September 30, 2026, a federal court in California vacated and blocked the policies implementing it, and the government has appealed. Check current USCIS guidance before filing.

Does the $100,000 fee apply to F-1 students changing status?

Under USCIS guidance issued in October 2025, change of status petitions granted inside the US were generally exempt. The fee targeted new petitions for workers outside the US.

Can I apply for an NIW instead of an H-1B?

Yes, if you qualify. An NIW is a green card petition you can file yourself. It does not give you work authorization by itself while the I-140 is pending, so many people keep a temporary status, such as F-1 OPT, H-1B or O-1, in the meantime.

Is EB-1A or NIW faster than H-1B?

Not necessarily. An H-1B can start within months if selected. With premium processing, an I-140 decision comes in 45 business days for NIW or 15 for EB-1A, but the green card also depends on the visa bulletin.

How does the weighted H-1B lottery work?

Each registration receives entries based on the offered wage level: four entries for Level IV, three for Level III, two for Level II and one for Level I.

HoatPen is a technical writing and consulting service, not a law firm. This article is general information and is not legal advice. H-1B rules are subject to ongoing litigation; confirm the current status with USCIS and an immigration attorney.

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