Trump renews push against H-1B visas after court ruling and proposes $103,000 fee

The Trump Administration has once again pushed for a fee on H-1B visas. After a federal judge blocked the imposition of a $100,000 fee in the middle of the year, the Department of Homeland Security (DHS) is seeking to establish a new fee of $103,265 for new applications, subject to the annual cap.

The H-1B is the primary visa used by U.S. companies to hire highly skilled foreign workers, particularly in technology, engineering, medicine, research, and mathematics. Congress established by law an annual cap of 85,000 new H-1B visas subject to the quota: 65,000 fall under the general cap, and another 20,000 are reserved for certain foreign workers who have earned a graduate degree from a U.S. institution of higher education.

Before the extraordinary fee pushed by Trump, companies faced a set of administrative fees that, in most cases, totaled a few thousand dollars per application, depending on the type of employer and the process. These costs were one-time or renewal fees, not a fixed annual fee, while the $100,000 imposed by Trump was also a one-time payment.

In June of this year, federal judge Leo Sorokin blocked the imposition of the fee, leading to a lawsuit filed by 20 Democratic states. According to the judge, the fee in question was intended to generate revenue from a legally authorized program, and therefore exceeded the powers of the Executive Branch. Furthermore, he argued, it violated the Administrative Procedure Act (APA), which requires federal agencies to subject new regulations to a public comment process, justify their adoption, and evaluate alternatives.

$103,265: The new fee proposed by DHS for H-1B visas

A little over two months later, the Department of Homeland Security revived the proposal. The agency headed by Secretary Markwayne Mullin, submitted the new fee to the Federal Register for official publication on Tuesday, marking the start of a 30-day period for public comment.

The text describes the fee as "appropriate" and notes that imposing it would help generate revenue to fund immigration activities carried out by agencies such as U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP).

According to DHS, the imposition of the new fee could lead to "a reduction in the number of H-1B cap registrations and some employers, including small entities, may file fewer petitions as a result of this proposed rule."

The fee would be added to the other costs associated with the visa application process and would be paid by the employer filing the petition.