Am I exempt from the $100k H-1B fee? Cap-Exempt Consular Processing with Approved I-140 and Prior Revocation

USA H1B Visa
1

Hello everyone,

I am currently outside the U.S. and looking for a definitive legal perspective on whether a new employer sponsoring me will be hit with the high-value H-1B entry fee (the $100k fee), should the current federal court blocks be overturned or modified.

Because I have an approved I-140 but my last active petition was recently revoked by my old employer, I want to make sure I am completely clear on my fee-exempt status before pitching to new sponsors. Here are my case details:

  • U.S. History & Timeline: I spent 12 years in the U.S. on H-1B status and have an approved Form I-140. My last H-1B petition was approved in June 2024 (valid through June 2027).

  • Job Loss & Departure: I lost my job in October 2024. I successfully filed a Change of Status to B-1 within my grace period to wind things up, and I cleanly departed the U.S. in May 2025. I do not have a physical H-1B visa stamp in my passport.

  • Automatic Revocation: I recently checked the USCIS portal for my June 2024 petition, and it states: “On May 15, 2026, we automatically revoked your Form I-129…” (due to my previous employer withdrawing the petition after I left).

My primary questions regarding the $100k fee exemption and next steps:

  1. Am I 100% exempt from the $100k fee as a grandfathered/existing beneficiary? Does the fact that my foundational cap slot was approved in June 2024—and that I have an approved I-140—permanently protect a new sponsor from this fee? Or does the “Automatic Revocation” and the fact that I am coming from abroad via consular processing trigger the fee as a “new entry”?

  2. Can a new employer immediately file a non-cap petition for a 3-year extension? Using my approved I-140 under AC21 rules, can the new employer request a full 3-year approval for consular notification, rather than just recapturing the remaining time on the revoked petition?

  3. Does the old petition’s revocation impact my cap exemption? I assume the automatic revocation is just standard administrative cleanup by USCIS after an employer withdrawal, but I want to verify it does not damage my ability to claim cap-exempt status with a new company.

Thank you in advance for your insights on how the fee guidance applies to an out-of-country beneficiary with an approved I-140!