The Trump administration is moving to make permanent a $103,265 fee for H-1B visa petitions that a federal judge has already blocked once and that faces multiple legal challenges.
The Department of Homeland Security on Monday posted a proposed rule to codify the fee, which was first imposed by presidential proclamation last year. A federal judge in Boston halted collection of the fee in June, ruling it an unauthorized tax imposed without congressional approval. An appeals court is currently reviewing that decision.
The temporary fee, imposed by proclamation, expires next month—one year after its initial implementation. By proposing the permanent rule now, the administration can argue it is seeking legislative-style validation through the regulatory notice-and-comment process, even if courts continue blocking the temporary measure.
DHS said the $103,265 fee would recover "costs incurred across the federal government to adjudicate, vet, and support lawful immigration programs." But court filings show that as of late February, only about 70 employers had paid the fee on roughly 85 visa applications—a minimal revenue stream.
President Trump has long argued that the H-1B program is abused by companies replacing American workers with cheaper foreign labor. The H-1B program allows employers to hire workers with training in specialty occupations. Annually, 65,000 visas are distributed under the regular cap, with an additional 20,000 reserved for workers holding master's degrees or higher from U.S. institutions. Before Trump's order, associated fees ranged from $2,000 to $5,000.
Earlier this month, DHS added fees of up to $4,500 to applications for H-1B extensions or for transferring employees based abroad to the U.S. Together, the moves suggest a coordinated campaign to raise the cost of hiring foreign workers.
Business groups argue that the H-1B program addresses a genuine shortage of qualified American workers for certain specialized positions and that restricting it weakens American competitiveness. The U.S. Chamber of Commerce, numerous Democratic-led states, and a coalition of labor unions and employers have filed challenges to the original $100,000 fee.
The proposed rule faces the same constitutional objection as the temporary fee: whether the executive branch has authority to impose what functions as a tax without congressional authorization. A federal judge has already found the temporary fee problematic on those grounds.
The DHS rule is scheduled for Federal Register publication Tuesday, with finalization possible by year's end. The public comment period will allow employers, universities, research institutions, and workers to submit formal objections that could be cited in future litigation.
