Trump Administration Proposes New Six-figure H-1B Fee

The Department of Homeland Security announced plans this week to charge a $103,265 fee to companies looking to hire non-US citizens through the H-1B visa program. Comments on the proposal are due by Sept. 24.

While universities, governmental research organizations, and nonprofit research organizations would not have to pay the new six-figure H-1B visa fee, it would apply to companies hiring foreigners with advanced degrees from US universities.

In its proposed rule, DHS explicitly states that the proposed $103,265 fee is not the same as the $100,000 fee it introduced last year, as it is based on a “different authority.”

Last year’s $100,000 fee faced several legal challenges and was blocked in federal court earlier this summer, but the Trump administration is appealing that decision. One key difference between the old fee and the new one is that the old one did not categorically exempt universities and other “cap-exempt” employers, while the new one does. Cap-exempt employers are not subject to the government’s annual H-1B numerical limit and can file H-1B petitions at any time.

Most companies hiring workers through the H-1B visa program must compete for a limited number of H-1B visa slots annually. The US government currently caps new H-1Bs at 65,000 per fiscal year, plus an additional 20,000 slots for people with qualifying master’s degrees or higher from US institutions — all of which would be subject to the new six-figure fee in addition to existing processing fees.

DHS projects the new fee will generate $8.8 billion annually based on the assumption it will receive 85,000 H-1B cap-subject petitions. DHS has historically received more petitions than it has approved, but the department predicts the new fee will lower the number of applications.

Bo Cooper, a partner at immigration law firm Fragomen, said the proposed rule “does not contemplate a refund” for employers if their H-1B petition is denied or withdrawn. Additionally, because H-1B workers can change employers, a company could pay the fee and later lose the employee. “This makes the cost not only high, but risky for employers hiring recent graduates or filling early-career, entry-level roles,” Cooper said. He predicts the rule will likely be challenged in court if it proceeds.

U.S. Citizenship and Immigration Services spokesperson Zach Kahler said in a press release that the proposed 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.”

Some observers, including Stuart Anderson, executive director of the National Foundation for American Policy, have questioned DHS’s projections, noting that applications for H-1B visas plummeted after the introduction of the previous $100,000 fee, and suggesting that the Trump administration’s true objective is to end employers’ use of the H-1B system.

The proposal has been criticized by higher education groups, including the Presidents’ Alliance on Higher Education and Immigration. Zuzana Wootson, deputy director of federal policy at the alliance, said the rule would have “significant detrimental effects on the economy, communities, and the nation’s global competitiveness,” adding it would “severely weaken the education-to-workforce pipeline and make the United States a far less attractive destination for the world’s most talented students.”

DHS’s proposed new fee comes just a few weeks after the department finalized its plans to eliminate the “duration of status” system and cap international and exchange visitor stays at a maximum of four years, among other recent visa policy changes impacting international students. Taken together, Cooper said these policies “risk weakening the talent pipeline that supports innovation, economic growth, and U.S. competitiveness.”

A recent AIP report suggested that science funding concerns and visa policy changes drove a record-high departure of non-US physics PhDs from the US last year.