The Department of Homeland Security (DHS) has recently unveiled a proposal that could significantly impact the landscape of foreign employment in the United States. A new fee of $103,265 is set to be imposed on cap-subject petitions for H-1B visas. Notably, this fee would affect all H-1B petitions, whether the prospective employee is within or outside the United States, but would exempt certain categories such as universities, specific non-profits, government roles, and visa renewals. Read more.
This move comes on the heels of a legal setback faced by the Trump administration. A federal judge deemed a prior attempt to impose a $100,000 fee on H-1B visas unconstitutional, citing a violation of the separation of powers doctrine. The administration is now leveraging agency rule-making to pursue this aspect of its immigration strategy, rather than using presidential directives.
The H-1B visa program serves as a crucial channel for employers seeking to hire temporary foreign workers for specialized positions. The annual cap for these visas, managed by US Citizenship and Immigration Services (USCIS), stands at 65,000. The proposed new fee would be in addition to existing application fees, with no assurance of visa approval, adding to the financial burden that applicants already face.
There are about 730,000 H-1B visa holders in the United States, contributing approximately $86 billion to the federal economy and $11 billion in state and local taxes. The DHS has indicated that the fee is intended to cover immigration and customs-related costs. Revenues from this fee would fund activities such as immigration court proceedings and the enforcement of labor standards.
The legal basis for the proposed fee is drawn from the Immigration and Nationality Act and the Homeland Security Act of 2002, which grants the secretary of homeland security the authority to set fees to recover the full costs of providing adjudication and naturalization services.
The proposal has sparked criticism from several think tanks, including the CATO Institute, which argue that it could severely undermine the H-1B visa program. Concerns have also been raised about the legal framework supporting the funding of the initiatives DHS plans to finance with the collected fees.
The proposal is subject to the notice and comment rulemaking process, allowing public input for 30 days following its publication in the federal register. This process will offer a window for stakeholders to express support or concern before any final decision is made.