The Trump administration is back with a new six-figure fee on H-1B visa petitions, $103,265 per application, just months after a federal judge threw out the first attempt as an unlawful tax.
The Department of Homeland Security published the proposed rule Monday, setting a $103,265 charge on every H-1B petition filed by employers subject to the program's annual cap. The move comes after U.S. District Judge Leo Sorokin ruled in June that the administration's earlier $100,000 fee amounted to a tax Congress never authorized, and vacated it. DHS is now routing the fee through a formal rulemaking process, complete with a 30-day public comment window, in an effort to put the charge on firmer legal ground.
The proposed rule, set for publication in the Federal Register on Tuesday, would apply to all cap-subject H-1B petitions but carve out universities, hospitals, and research-based institutions. USCIS spokesperson Zach Kahler framed the fee as a cost-recovery measure in a statement reported by The Hill:
"The proposed H‑1B fee is intended to recover the costs incurred across the federal government to adjudicate, vet, and support lawful immigration programs that otherwise must be funded by taxpayers."
The fee would cover costs spread across DHS, the Departments of Justice, State, and Labor, all of which play a role in processing and vetting H-1B workers.
The original $100,000 fee, imposed by presidential proclamation, lasted only a few months before Judge Sorokin blocked it. His ruling held that Congress alone has the authority to set immigration policy and taxes, and that the executive branch had overstepped. The U.S. Court of Appeals for the First Circuit denied an emergency request to block Sorokin's ruling, leaving the fee dead in the water.
The damage was measurable. David Bier of the Cato Institute told The Hill that the first fee produced a "nearly 90 percent reduction in filings and a $28 million loss in revenue." Only about 70 employers had paid the $100,000 fee on 85 visa applications as of late February before the court stepped in, Fox News reported.
Bier went further, arguing the government's own courtroom admissions undercut the "cost recovery" rationale:
"The administration claims the new fee will be a 'cost recovery mechanism,' even though the first fee led to a nearly 90 percent reduction in filings and a $28 million loss in revenue. The government itself told the court that the $100,000 fee was 'arguably prohibitive' and 'does not raise revenue.'"
He also challenged the legal basis outright, noting that immigration fees can only be imposed to recover adjudication and naturalization costs, not to fund broader government operations. And because the fee is due at filing, employers would pay it with no guarantee USCIS approves the petition.
"Almost no one will risk more than $100,000 with no guarantee of approval."
One notable change in the new proposal: the original $100,000 fee applied only to workers hired from outside the country. The new $103,265 fee would also cover H-1B petitions for workers already residing in the United States, broadening its scope considerably.
The H-1B program issues 85,000 capped visas annually, 65,000 under the regular cap and 20,000 reserved for applicants with a master's degree or higher from a U.S. college or university. Another 6,800 of those regular-cap slots are set aside for Chilean and Singaporean nationals under trade agreements. Computer-related positions account for nearly two-thirds of all H-1B approvals, per the Bipartisan Policy Center.
At least 730,000 non-immigrant H-1B contract workers are currently employed in the United States, Breitbart reported, contributing to what the outlet described as a 26 percent unemployment and underemployment rate among computer science graduates. Kevin Lynn, founder of U.S. Tech Workers, called the proposal "a brilliant and bold stroke by DHS, which is using rulemaking to defend American graduates."
The draft regulation itself acknowledged the fee's secondary effects. One passage stated the charge "could also have the indirect benefit of better protecting the wages and job opportunities of U.S. workers."
By going through the notice-and-comment process instead of a presidential proclamation, DHS is clearly trying to address Judge Sorokin's core objection, that the executive branch imposed a tax without congressional authorization. The formal rulemaking path gives the fee a stronger procedural foundation. Fox News reported the charge could be finalized by the end of the year.
But the legal questions remain. Bier's argument, that immigration fees are legally limited to recovering adjudication costs, and that a $103,265 charge plainly exceeds those costs, will almost certainly be tested in court again. The government's own admission that the prior fee was "arguably prohibitive" and "does not raise revenue" gives challengers ready-made ammunition. And the new rule's broader reach, covering workers already in the country, opens an additional front for litigation.
Companies and tech workers will have 30 days after the Federal Register publication to submit comments on the proposal. Given that the H-1B program is dominated by large technology firms, and that the fee would apply per petition, not per employer, the industry response is expected to be fierce. The proposal has already drawn sharp reaction in India, where the H-1B pipeline plays a major economic role.
The underlying impulse is sound. American workers, especially recent graduates in computer science and engineering, deserve a labor market that is not tilted against them by a visa program that lets employers import cheaper alternatives. Taxpayers should not subsidize the processing costs of a system that primarily benefits large corporations. Those are reasonable positions, and the administration is right to press them.
But a fee that a federal judge already called "arguably prohibitive" does not become lawful by adding $3,265 and running it through a different procedural channel. If the goal is cost recovery, the math has to add up. If the goal is to discourage H-1B hiring, that is a policy choice Congress should make, not one smuggled through the fee schedule. The first attempt collapsed precisely because it tried to do the latter while claiming to do the former.
The 30-day comment period will draw thousands of responses from tech companies, immigration lawyers, and advocacy groups on both sides. The courts will have the final word, again. And the central question will be the same one Judge Sorokin already answered once: does the executive branch have the authority to price American employers out of a visa program that Congress created and capped at 85,000?
If the administration wants to protect American workers from H-1B abuse, it has the right instinct. It just needs a vehicle that can survive a courtroom, not just a news cycle.
