The Department of Homeland Security (DHS) on Monday published a proposed fee of $103,265 for those filing a “cap subject” application for an H-1B visa. The new fee would apply to all H-1B petitions, regardless of whether the worker is inside or outside the U.S., except those filed by universities, certain nonprofit organizations such as hospitals, government agencies or visa extensions.
This proposal follows a federal judge’s June declaration and subsequent appeals court confirmation that President Trump’s previous $100,000 fee for H-1B visas violated the separation of powers doctrine and was therefore unconstitutional. Since attempts to implement the original fee proved unsuccessful, at least temporarily, the Trump administration has taken a different route to advance this part of its agenda, resorting to regulatory regulation instead Presidential power.
The H-1B visa program is the most common method for employers to retain temporary foreign workers in specialist positions. Visas issued under the program by the United States Citizenship and Immigration Services (USCIS) are capped at 65,000 per fiscal year and the proposed fee applies to all visa applications not exempt from the cap. In addition, the fee is in addition to all other fees incurred when applying for the visa, including the prior and possibly rechargeable fee of 100,000, and is merely an application fee and not a guarantee that the visa will be approved.
H-1B workers make up approximately The company employs 730,000 people in the U.S. and contributes an estimated $86 billion to the federal economy and $11 billion to state and local tax revenues.
DHS noted in its decision that the purpose of the fee is to cover immigration and customs costs incurred by federal authorities in enforcing the mechanisms of the “lawful immigration system.” Funds raised will be used for operations such as immigration court proceedings, consular visa processing, labor standards enforcement, and inspection and enforcement activities at ports of entry.
The federal agency takes its legal authority from both Immigration and Nationality Act and the Homeland Security Act of 2002specifically, the portion that states that the Secretary “may establish fees for the provision of adjudication and naturalization services…at a level that will ensure reimbursement of the full cost of providing all such services.”
The proposed fee has already been significantly reduced criticized by think tanks such as the CATO Institute because of its potential to decimate the H-1B visa program and existing legal deficiencies in its ability to effectively raise funds for the programs specified by DHS.
Pursuant to the law governing notice and comment rules, the rule remains open after publication in the Federal Register public comment for a period of 30 days.
