The Trump administration has formally proposed a permanent rule that would charge employers a $103,265 fee for each H-1B cap-subject petition they file with the federal government to hire a highly skilled foreign worker in specialty occupation.
The proposed rule was published in the Federal Register on Monday by the U.S. Department of Homeland Security and U.S. Citizenship Immigration Services. Businesses, institutions and other interested parties have until 11:59 p.m. on Sep. 24 to submit comments on the proposal.
The proposed fee would be separate and stacked on top of a $100,000 fee on new H-1B visas that President Donald Trump ordered last year that has been stayed during a federal court challenge filed by 20 states, including New Jersey. A federal court in Massachusetts ruled the fee was illegal, and the fee is not being enforced while the federal government appeals.
Now the Trump administration is using a different mechanism – a proposed regulatory change rather than a presidential proclamation – to establish a “dedicated revenue mechanism to help recover a portion of the federal government’s costs of administering the law immigration system,” the notice in the Federal Register states.
The new proposed fee does not apply to petitions that are not subject to the agency’s annual cap, which includes petitions filed by U.S. higher education institutions and nonprofit hospitals that are affiliated with universities and research institutions.
The proposed fee would fall most heavily on “cap-subject” private employers that rely on the annual H-1B lottery to recruit specialized workers, with small businesses and startups potentially facing the greatest burden because a $103,265 fee represents a much larger share of their resources. This includes software, AI, engineering and other technology companies; private hospitals and healthcare providers; and financial services companies.
Cap-subject means an H-1B petition that counts against the annual numerical limit on new H-1B visas. There are generally 85,000 cap-subject H-1Bs available each fiscal year: 65,000 regular H-1Bs and 20,000 additional H-1Bs for people with a master’s degree or higher.
Demand usually exceeds those numbers, so affected employers must go through the H-1B registration and selection process, often referred to as the H-1B lottery. Under the proposal, the employer would pay the $103,265 fee if their registration is selected, and they file an H-1B petition. The rule does not say if the fee would be refunded should the employer’s petition ultimately be denied for failing to meet H-1B requirements.
