The $103,265 charge proposed this week for H-1B visa petitions is the administration’s second attempt at putting a six-figure price on skilled-worker visas. The first was struck down in court in June. Understanding why explains the shape of the new proposal.

The first attempt

In September 2025, President Trump signed a proclamation requiring a $100,000 payment for certain new H-1B petitions, aimed principally at workers outside the United States. It was to apply to petitions filed on or after 21 September 2025 and to run for twelve months.

On 8 June 2026, US District Judge Leo Sorokin, sitting in Massachusetts, vacated the agency guidance implementing it. The reasoning, as reported, was that imposing what amounted to a tax on visa applications was unlawful because Congress alone holds the authority to set immigration policy and taxation. The government appealed on 11 June, and that appeal is still pending. The proclamation itself is due to expire on 21 September 2026 unless extended.

Proclamation versus regulation

The two mechanisms are legally distinct, and DHS goes out of its way in the new proposal to say so.

A presidential proclamation is an exercise of executive authority, issued directly and effective immediately. It is fast, and it is legally exposed: if a court finds the authority does not extend that far, there is nothing else holding it up.

A regulation made through notice-and-comment rulemaking is slower — a proposal, a comment period, a response to comments, then a final rule. In exchange it acquires a record: the agency has published its reasoning, invited objections and addressed them. Courts reviewing such a rule ask whether the agency acted within its statutory authority and whether its reasoning was adequate, rather than whether the President had the power to act alone.

DHS states that the new fee rests on different statutory authority from the 2025 payment, and would be codified in the regulations governing immigration fees. It also expects the proclamation to expire before the new fee could take effect — though it acknowledges that if both were in force at once, an employer could in principle owe both.

The argument the next case will turn on

Litigation is widely expected, and the central question is reasonably clear.

Immigration fee authority is generally understood to permit agencies to recover the costs of providing adjudication and naturalisation services. The Cato Institute’s David Bier argues that even if the fee raised revenue, that would not make it lawful, because fees may only recover the costs of those services.

The proposal states openly that the money would fund immigration activity across several departments, including ICE and the immigration courts. That candour is unavoidable in a rulemaking — the agency must explain itself — and it hands challengers the argument that this is a revenue measure rather than cost recovery, and therefore a tax that only Congress can levy. That is close to the reasoning the Massachusetts court applied in June.

The government’s counter-argument will be that the activities funded are genuinely part of the cost of running the system that adjudicates these petitions. We do not know how a court will resolve it, and anyone predicting confidently is guessing.

Two tracks at once

What is notable procedurally is that the administration is doing both things simultaneously: defending the struck-down proclamation on appeal while building a regulation designed to survive the objection that defeated it.

This is a recognised strategy rather than a contradiction. If the appeal succeeds, the earlier mechanism revives. If it fails, the regulation may still stand on its own footing. Immigration lawyers reading the proposal have taken it as a signal that the administration intends to impose a substantial cost on H-1B sponsorship one way or another.

For employers, the practical consequence is a long period of uncertainty in which no one can price a hire with confidence — which has effects of its own, regardless of how the litigation ends.

Sources

• VisasNews, on the June ruling, the appeal and the distinction in legal authority, 25 August 2026
• The Hill, on Judge Sorokin’s ruling and the Cato Institute’s argument, 25 August 2026
• NNU Immigration, on the two-track strategy, 25 August 2026