Here's the thing. The Department of Homeland Security proposed on Monday a fee of $103,265 on every H-1B visa petition subject to the program's annual cap of 85,000 visas — including the 20,000 slots reserved for workers holding U.S. master's degrees or higher. Employers would pay the charge on top of existing fees at the time of filing.
This is the administration's second swing at a six-figure H-1B fee. A $100,000 charge imposed by presidential proclamation was struck down by a federal judge in June, with Judge Leo Sorokin ruling the administration had effectively imposed an unauthorized tax without congressional approval. The First Circuit declined to pause that decision while the appeal proceeds. So DHS is now routing the new fee through the federal regulatory process — a 30-day public-comment period after Federal Register publication — framing the $103,265 as cost recovery for administering the broader legal immigration system, including immigration courts, enforcement, and visa processing. The administration estimates the fee would generate approximately $8.8 billion annually.
The scope is wider than the earlier attempt. The previous proclamation-based fee mainly targeted new H-1B arrivals from overseas. The proposed rule applies to cap-subject petitions filed for people already in the United States seeking a change of status — which means international students currently working under Optional Practical Training could be caught in the net. DHS is also separately considering a $100,000 fee on OPT itself.
Universities, nonprofit research organizations, and government research institutions whose petitions are not subject to the annual cap would be exempt. That carve-out matters: the previous $100,000 fee exacerbated labor shortages at rural hospitals and Alaska public schools, both of which rely heavily on high-skilled immigrant workers. The exemption may blunt some of that damage, though advocates are not convinced.
'This is clearly unlawful,' said Todd Schulte, president of FWD.us, an immigration reform organization founded by Mark Zuckerberg and other tech executives in 2013. 'We don't have to guess what this is for. This is to get rid of the OPT and H-1B program, which will have upstream and downstream devastating consequences: companies will be started elsewhere, people will be hired elsewhere.' India's largest technology industry association, Nasscom, also urged the administration to consider the program's role in addressing U.S. labor shortages.
Demand for H-1B visas far exceeds supply: U.S. Citizenship and Immigration Services received more than 211,000 registrations for the most recent lottery against a cap of 85,000.
The proposal can still be altered, withdrawn, or challenged in court before taking effect.
Voltage's read: The regulatory route is smarter politics than a proclamation — it is harder to swat down in a single ruling. Whether it survives judicial review is a separate question. What is not in dispute is the administration's stated logic: make foreign labor expensive enough that companies hire Americans instead. That is a legitimate policy argument. The problem is that a blunt price signal does not conjure qualified candidates in rural Montana or rural Alaska; it just leaves the position empty. Free-market principles cut both ways here — and a $103,265 toll on a single hire is about as far from a light regulatory touch as it gets.
