DHS Proposes New H-1B Fee After Judge Strikes Down Trump’s $100,000 Charge

The Department of Homeland Security is proposing a new $103,265 fee for many H-1B visa petitions, less than three months after a federal judge struck down President Donald Trump’s separate $100,000 payment requirement.

The proposed rule, published in the Federal Register on August 25, would impose the additional fee on H-1B petitions subject to the program’s annual cap, including petitions for workers eligible for the advanced-degree exemption. Employers would pay the charge on top of other required filing fees.

The proposal is not yet in effect. DHS must complete the federal rulemaking process before adopting a final regulation, and public comments are due by September 24.

Although the new amount closely resembles the charge struck down in June, DHS is relying on a different source of legal authority and using the notice-and-comment process required for federal regulations. That distinction is central to why the earlier court ruling does not automatically decide whether the new fee would be lawful.

Trump established the previous $100,000 payment through a September 2025 presidential proclamation, relying primarily on Sections 212(f) and 215(a) of the Immigration and Nationality Act. Those provisions give presidents broad authority to restrict or suspend the entry of certain foreign nationals.

U.S. District Judge Leo Sorokin ruled on June 8 that those powers did not authorize the payment. He found that the charge operated as a tax and that Congress had not delegated its taxing authority to the president through the immigration provisions cited by the administration.

“The substance and application of the $100,000 payment reveal that it is a tax,” Sorokin wrote in the 42-page decision. He found that statutory language allowing the president to impose restrictions, rules and limitations on entry did not extend to levying taxes.

The ruling drew in part from the Supreme Court’s 2026 decision limiting Trump’s ability to impose tariffs under emergency economic powers. In that case, the Supreme Court emphasized that Congress must clearly authorize the executive branch when delegating powers tied to taxation and tariffs.

Sorokin vacated the policies implementing the H-1B payment. The administration appealed to the U.S. Court of Appeals for the First Circuit, which denied the government’s request in July to keep the charge in effect while the appeal proceeds. The underlying appeal remains pending.

DHS is now relying on a separate part of the Immigration and Nationality Act that authorizes the department to establish immigration fees through federal regulations. Under Section 286, codified at 8 U.S.C. § 1356(m), immigration fees may be set at levels designed to recover the full costs of providing adjudication and naturalization services, including certain services provided without charge to other immigrants.

The earlier case tested whether the president could use his authority over entry into the United States to impose the $100,000 payment. The new proposal instead tests how broadly DHS can use its separate fee-setting authority to recover immigration-related costs.

DHS says it calculated the $103,265 charge by dividing approximately $8.78 billion in costs it seeks to recover by an expected 85,000 fee-paying H-1B petitions each year. The department rounded the resulting amount to $103,265 and projects that the fee would generate roughly $8.8 billion annually at that filing level.

The revenue would finance more than the processing of the H-1B petitions that generate the money. DHS says the fee would help recover costs across U.S. Citizenship and Immigration Services, Immigration and Customs Enforcement, Customs and Border Protection, the Justice Department’s immigration courts, the State Department and the Department of Labor.

The proposal identifies expenses including immigration adjudications, consular processing, fraud detection, national security vetting, labor enforcement, information technology and inspection and enforcement activities at and between ports of entry.

Federal law allows DHS to recover the costs of immigration adjudication and naturalization services, but the proposal would place costs from several parts of the immigration system on cap-subject H-1B employers. The legal question is whether Congress gave DHS enough authority to assign billions of dollars in those broader costs to one category of employers.

DHS maintains that Section 286 gives it sufficient authority to do so. The department also acknowledges that the approach differs from its historical fee structure and says it has not previously shifted costs between programs based on a determination that one group of applicants is better able to absorb higher fees.

The proposed charge would apply only to H-1B petitions subject to the annual numerical cap. Federal law generally provides 65,000 H-1B visas each year under the regular cap, with another 20,000 available for workers who earned qualifying advanced degrees from U.S. institutions. Petitions in both groups would be subject to the additional fee.

Cap-exempt petitions would not face the $103,265 charge. Those exemptions commonly cover qualifying universities and affiliated nonprofit organizations, nonprofit research organizations and government research organizations, although other H-1B filings can also fall outside the annual cap depending on the worker’s circumstances.

DHS says it selected cap-subject employers because it believes they are better able than many other immigration applicants to absorb the additional cost. Existing H-1B filing and statutory fees vary by employer and petition but generally amount to several thousand dollars, making the proposed charge a substantial increase.

The department estimates that the rule would have a significant economic impact on more than 11,000 small entities. Technology companies are among the most visible users of the H-1B program, but employers also rely on the visas for specialized workers in engineering, finance, health care, research and other fields.

DHS acknowledges that the higher cost could affect hiring decisions by making employers less likely to select an H-1B worker over a qualified U.S. worker. The agency nevertheless projects that approximately 85,000 cap-subject petitions would be filed annually if the rule is adopted.

The Federal Register proposal relies on DHS fee-setting authority rather than the presidential entry powers at issue in Sorokin’s June ruling. That leaves the scope of the department’s authority under Section 286 as the central legal issue raised by the new fee.

Public comments on the proposed rule are due September 24. The $103,265 fee is not currently in effect, and the government’s separate appeal of the ruling against Trump’s $100,000 H-1B payment remains pending in the First Circuit.