The struck-down $100,000 H-1B fee returns as a $103,265 filing charge

DHS proposes to establish a $103,265 fee, payable at the time of filing, for all H-1B cap-subject petitions, including those eligible for the advanced degree exemption, imposed in addition to all other applicable fees or payments.

DHS proposed the fee in a 67-page filing on Monday.

In June, a federal judge in the US District Court for Massachusetts ruled the administration's $100,000 H-1B payment requirement unlawful and struck it down; the new proposal came less than three months later.

The H-1B annual limit is 65,000, with a separate 20,000 exemption for individuals with advanced degrees.

Jonathan Wasden of Wasden Law said the new fee is "allegedly authorized by Section 1356(m)" and that there are two problems for the government, the first being that "the massive increase is wholly detached from any fee analysis."

In a June interview after the district court struck down the $100,000 fee, Wasden said he believed the administration might try new legal grounds to justify the fee.

The new fee would not apply to cap-exempt petitions, which include universities, educational institutions and nonprofit or governmental research organizations.

Vice President JD Vance backed the proposed fee, writing on Monday while sharing a Wall Street Journal post about it: "If an American corporation needs workers, it should hire and train Americans." The post had over 2 million views as of press time.

Companies recruiting at US universities find that international students account for approximately 75% to 80% of full-time graduate students in AI-related fields such as computer and information sciences.

H-1B employers must pay the higher of the actual or prevailing wage paid to US professionals with similar experience and qualifications.

A separate proposed rule may price many H-1B visa holders and employment-based immigrants out of the US labor market by changing prevailing wage levels.

After the district court struck down the fee as an unlawful tax, the administration proposed to overcome the ruling with a broader tax and by asserting that the purpose is no longer to restrict H-1B entry but to fund immigration-related functions across the US government.

Another upcoming rule may introduce additional H-1B restrictions.

DHS says the fee would serve as a dedicated revenue mechanism to help recover a portion of the federal government's costs of administering the lawful immigration system, including activities carried out by DHS, the Justice Department, the State Department and the Labor Department.

DHS says the fee is designed consistent with section 286(m) of the Immigration and Nationality Act, 8 U.S.C. 1356(m), to recover a portion of the full costs of providing immigration adjudication and naturalization services incurred by multiple federal agencies.

Section 1356(m) provides that fees for providing adjudication and naturalization services may be set at a level ensuring recovery of the full costs of providing all such services, including services provided without charge to asylum applicants or other immigrants, and any additional costs of administering the fees collected.

DHS said that if the new fee were imposed, US employers would be less likely to hire an H-1B worker over a "qualified and highly-skilled American worker" unless they have "no alternative for obtaining the specialized skills of the employee."

If the H-1B visa holder is outside the United States and the $100,000 tax from the September 2025 proclamation is later ruled lawful, an employer would need to pay both, totaling over $200,000 for a single employee.

In July, DHS finalized a rule limiting the initial admission period for international students on F-1 visas to four years.

DHS's projected $8.8 billion in annual fee revenue divided by the $103,265 per-petition charge implies about 85,220 paid petitions a year, roughly the entire 85,000 annual cap of 65,000 plus the 20,000 advanced degree exemption.

The two charges stacked come to $203,265 per employee.

DHS said in the filing that H-1B petitioners are "willing and able" to pay an additional fee.

A preliminary National Foundation for American Policy analysis finds DHS uses questionable assumptions to claim the $103,265 in higher costs will not significantly reduce H-1B petitions.

DHS projected in its filing that about $8.8 billion in annual revenue from these petitions would support immigration-related activities at USCIS, ICE, Customs and Border Protection, the Justice Department's immigration courts, the State Department and the Labor Department.