The US Department of Homeland Security has proposed charging employers $103,265 for every H-1B visa petition subject to the annual cap — a fee more than a hundred times the current base filing charge, and, if finalised, the largest ever imposed on an immigration benefit request.
The proposal went on public inspection on 24 August and was published in the Federal Register on 25 August, opening a 30-day comment period. It is a notice of proposed rulemaking, not a final rule: no employer has to pay it today.
What it would cover
The fee would apply to petitions filed under the regular annual cap of 65,000 visas and to the 20,000 additional places reserved for holders of US advanced degrees. It would be charged on top of existing H-1B fees, at the time of filing.
Petitions exempt from the annual cap would not be affected. That generally covers universities, affiliated non-profits, and non-profit and government research organisations, along with most extensions and changes of employer for workers already counted against the cap. Notably, those are the same institutions that were caught by the earlier $100,000 measure and would now be spared.
DHS estimates the fee would apply to roughly 85,000 petitions a year and raise about $8.8 billion annually.
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What the money is for
Most immigration fees are set to recover the cost of processing the specific application. This one is different by design. DHS says the revenue would fund immigration-related activity across several agencies — US Citizenship and Immigration Services, Immigration and Customs Enforcement, and the departments of Labor, State and Justice, including the federal immigration courts — covering adjudication, fraud detection, national security vetting and systems modernisation.
The administration also argues the fee would encourage employers to hire American workers and raise their pay.
Will employers pay it?
DHS says yes, mostly. It projects filings falling from an average of about 96,750 a year between 2021 and 2025 to roughly 85,000 — enough to fill the available places. It cites a 2026 economic study estimating that employers would absorb one-off costs of between $100,000 and $200,000 to hire certain foreign H-1B workers.
Critics point to what happened last time. David Bier of the Cato Institute noted that the earlier $100,000 payment led to a nearly 90 per cent reduction in filings and a $28 million loss in revenue, and that the government itself told a court the fee was arguably prohibitive and did not raise revenue. He also raised a structural objection: because this is a filing fee, employers would pay it with no guarantee the petition is approved.
Both positions are predictions about employer behaviour, and the evidence cuts in different directions — a 90 per cent drop under one design does not automatically predict the response to another. The US Chamber of Commerce has opposed measures of this kind.
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Who it would hit hardest
A six-figure charge per hire is a very different proposition depending on who is paying it.
For a large technology company hiring a senior engineer, it is a meaningful but absorbable cost, comparable to a recruitment fee and a fraction of total compensation over a three-year visa term. For a startup, a small engineering firm, a regional hospital system or a non-profit that is not cap-exempt, it can exceed the first year’s salary. The fee applies equally to small employers and to non-profits that fall inside the cap.
The predictable consequence, whatever one thinks of the policy, is concentration: the same number of visas, distributed towards employers large enough to pay. Whether that outcome is a flaw or the intent is a question the comment period will surface.
What happens next
Comments are open for 30 days from publication. DHS then reviews them and decides whether to finalise, amend or withdraw the proposal. That process typically takes months, and litigation is widely expected — the legal history behind this proposal is set out here.
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