President Donald Trump's administration on Monday released a proposed regulation to codify an unprecedented more than $100,000 fee on new H-1B visas for highly skilled foreign workers that Trump first imposed last year but has been blocked by the courts.
The fee first imposed by Trump in a temporary proclamation last year, vastly raises the cost of the visas that are heavily relied on in the tech, education and research sectors.
A federal judge in June ruled that the fee was illegal and blocked the Trump administration from collecting it. A Boston-based appeals court is reviewing that decision while a different court considers whether a judge in Washington, D.C., properly rejected a challenge to the fee by a major business group.
Trump's 2025 proclamation imposing the fee expires in September, one year after it was issued, but directed the U.S. Department of Homeland Security to adopt regulations making it permanent.
The proposed $103,265 fee by DHS, posted online in the Federal Register on Monday to be formally published on Tuesday, kicks off a 30-day public comment period. The rule could be finalized by the end of the year.
The H-1B program allows U.S. employers to hire foreign workers with training in specialty fields and offers 65,000 visas annually, with another 20,000 for workers with advanced degrees, approved for three to six years.
The order Trump issued last year, sharply increased the cost of obtaining some H-1B visas, which had typically come with about $2,000 to $5,000 in fees, depending on various factors.
DEBATE OVER VISA PROGRAM
Trump, a Republican, and other critics of the H-1B program say it is abused by many companies who replace American workers with cheaper foreign labor. But business groups and many individual companies have said the visa program is needed to address a lack of qualified American workers for some jobs and to allow U.S. businesses to recruit top talent.
About 70 employers had paid the $100,000 fee on a total of 85 visa applications as of late February, according to court filings.
In imposing the fee, Trump invoked the president's power under federal immigration law to restrict the entry of certain foreign nationals who would be detrimental to U.S. interests.
The fee is being challenged by the U.S. Chamber of Commerce, the largest U.S. business lobbying group, Democratic-led states and a coalition of unions and employers. Those lawsuits could be amended to challenge the rule proposed this week once it is finalized.
LEGAL CHALLENGES MOUNT
The lawsuits claim that Trump's power to restrict entry does not allow him to override the law that created the H-1B visa program. The states and groups that sued also say that the Homeland Security Department cannot impose fees, taxes or other means to generate revenue for the United States without permission from Congress.
The Trump administration has maintained that the fee is not a traditional tax and that courts have little power to question the president's authority to restrict entry into the country. Amid Trump's broader immigration crackdown, employers last year registered for about 344,000 H-1B visas, down more than 25% from 2024 and fewer than half of the 794,000 visas sought in 2023, according to data, from U.S. Citizenship and Immigration Services.
The Trump administration has also ordered enhanced vetting of H-1B applicants and proposed a new visa selection process that would favor higher-skilled and better-paid workers. Earlier in August, the Department of Homeland Security in a separate rule added fees of up to $4,500, to applications to extend the stay of H-1B workers or to transfer employees based in other countries to the United States.
Source: Reuters
– Agencies
