Dive Brief:
- Entities filing for cap-subject H-1B visa petitions would need to pay a $103,265 fee for every such petition under a soon-to-be proposed rule unveiled Monday by the U.S. Department of Homeland Security and U.S. Citizenship Immigration Services.
- The proposal is separate from the $100,000 fee on new H-1B visas announced last year by President Donald Trump and is intended to “generate dedicated revenue to support the costs of administering the lawful immigration system,” DHS said. Employers already subject to last year’s fee, which has been stayed by a federal judge, would have to pay both fees where applicable.
- Stakeholders may submit public comments on the proposal for a period of 30 days from the date of publication, scheduled for Aug. 25. Employers can likely expect legal challenges to the rule once it is finalized, said Caroline Tang, shareholder at Ogletree Deakins.
Dive Insight:
The news marks the Trump administration’s latest effort to amend the H-1B visa program, which the president claimed in a proclamation last year “has been deliberately exploited to replace, rather than supplement, American workers with lower-paid, lower-skilled labor.” Those concerns gave rise to the initial $100,000 fee, which USCIS later clarified would apply only to certain new petitions filed on or after Sept. 21, 2025.
Trump’s announcement sparked litigation by parties including the U.S. Chamber of Commerce, which sued DHS in the U.S. District Court for the District of Columbia. A judge there held in favor of the administration back in January, writing that Trump did not exceed his authority in issuing the fee proclamation.
But months later, a Massachusetts federal judge presiding over a separate lawsuit vacated the proclamation and declared it unlawful. That 1st U.S. Circuit Court of Appeals last month declined to place a stay on the judge’s order.
Interested parties have a quick turnaround time by which to submit comments on the latest fee proposal, Tang said. She added that litigation against the rule could target the proposed fee amount itself as potentially arbitrary and capricious. USCIS said it calculated the $103,265 figure in part by assessing the total interagency cost of maintaining the lawful immigration system.
The new fee would not apply to petitions that are not subject to the agency’s annual cap, which includes petitions filed by U.S. higher education institutions and similar nonprofit entities, among other categories.
The program has been made more costly for employers in several other ways. In March, the U.S. Department of Labor announced a proposed rule to increase prevailing wage rates for H-1B visa holders. That came on top of DHS’ revival of wage-based selection criteria by which the agency would select H-1B petitions using a tiered format weighted in favor of higher-paying offers.
Additional cost increases could be on the horizon, said Tang, who noted that USCIS has reportedly considered instituting a fee on international students who participate in optional practical training, or OPT.
Separately, DHS also said earlier this month that it would propose a rule to eliminate the 60-day grace period for current H-1B visa holders whose employment expires prior to the expiration date of their visas.
The slew of changes to the program may create a “chilling effect” for employers, Tang said, and could lead them to revisit their talent succession plans given that cap-subject H-1B visa holders tend to be earlier in their careers.