Trump devises new $100,000 H-1B visa fee after court defeat

WASHINGTON — A federal court struck down the Trump administration’s attempt to put a $100,000 fee on visas for some highly skilled foreign workers in June. Now the administration is trying again — this time through a regulatory process that proposes a broader levy to help finance its wide-ranging immigration crackdown.

Companies would pay roughly $103,000 for each candidate they sponsor for a visa under the H-1B program for foreign-born professionals, according to the regulatory proposal Monday. Unlike the earlier initiative, it would apply to almost anyone getting a new visa, not just those who are outside the country.

Opponents say the fee is so onerous it would effectively shut down most of the pipeline for such workers, many of whom are well-paid professionals in information technology, medicine or finance. The H-1B visa program has been the primary entry point into the labor market for hundreds of thousands of U.S. university graduates and other foreigners who bring skills that are in high demand. In recent years, though, it became a prime target for critics of loose immigration policy who say H-1Bs undercut American workers.

Analysts warn that if one of the primary paths for working in the U.S. goes away, America will lose out on some of the world’s most talented people, who now have more options in Canada and Europe, as well as developing countries where many of the H-1B applications come from, like India and China.

“They want to stop U.S. employers from using H-1B. It’s really simple,” said Charles Kuck, an Atlanta attorney and past president of the American Immigration Lawyers Association. “India’s gonna love this. China’s gonna love this. Europe is gonna love this.”

The move is the latest salvo in a government-wide immigration crackdown that began with a mass arrest and deportation program targeting those in the country illegally but has since expanded to nearly every legal immigration program as well. As of July, the Trump administration had deported roughly 600,000 people and arrested more than 560,000 foreigners. Increasingly, those arrests have included people who say they have valid visas and pending immigration applications.

The fees might also discourage foreign students from studying in the U.S., since an American degree often came with a temporary work permit and a chance for long-term residency with an H-1B. Already, the number of international students applying to attend U.S. colleges this fall has dropped about 10%, the biggest decline in at least a decade, according to data from the country’s most widely used college application platform.

“This is specifically targeted at cutting off the flow of foreign national students, who are in a lot of ways the lifeblood of education in the United States,” said James Hollis, an immigration lawyer in Memphis. “They should call this ‘the American Brain Drain Regulation.’”

The proposed fee doesn’t appear to apply to foreigners who are renewing their visas or those who are recruited to hospitals, some nonprofits and universities, employers that are generally not subject to the annual visa cap.

H-1B fees were raised during the last year of the Biden administration to $780, a 70% increase. At the time, the Biden administration said the increase was meant to cover the costs of adjudicating the program.

In June a federal court in Massachusetts struck down Trump’s first $100,000 H-1B fee policy, saying the fee was a tax that needed Congressional approval instead of a regulatory penalty. The administration is appealing, but its emergency bid to block the ruling was denied last month by the U.S. Court of Appeals for the First Circuit.

The new 67-page proposal from Trump says the fee is necessary to offset the costs of administering the visa program and broader immigration enforcement efforts. The new fee, the government said, could generate roughly $8.8 billion to help fund agencies dealing with immigration issues, including Immigration and Customs Enforcement and the federal immigration court system.

For some companies that hire H-1B workers, the costs could be prohibitive, according to Bo Cooper, a partner at Fragomen, an immigration law firm.

“For a company that wants to hire 100 H-1Bs, that’s roughly a $10.3 million filing fee bill to the government,” he said. That’s before any additional costs to bring the person on board.

Critics of the program often argue that companies abuse the system by underpaying foreign talent for jobs that they could hire for locally, but at steeper salaries.

The Department of Homeland Security believes the fee would discourage employers form hiring “an H-1B worker over a qualified and highly-skilled American worker unless the need is legitimate and they have no alternative for obtaining the specialized skills of the employee,” according to the proposed regulation. “Given that demand for H-1B workers greatly exceeds the statutory cap, this fee could also have the indirect benefit of better protecting the wages and job opportunities of US workers, as the H-1B program is intended to do.”

The proposed regulation cites an National Bureau of Economic Research report from February that says that “on average, H-1B workers earn 15% less than comparable natives.”

Mark Krikorian, the executive director of the Center for Immigration Studies, a Washington research center that advocates for lower immigration rates, said the administration’s proposal has merit.

“The question of course is whether this would pass legal muster,” he said. “But anything that would either improve the quality of H-1Bs and/or reduce the numbers would be a step in the right direction. You are not going to be importing some cheap H-1B labor if you’ve got to pay $100 grand.”

Annually, 85,000 H-1B visas are awarded via a random lottery for jobs that employers say they otherwise couldn’t fill.

Last year, the administration changed the rules for the lottery to favor visa requests for the highest paying jobs. Earlier this year, it also proposed raising the minimum wages for all H-1B visa workers, a move that analysts have projected could cost the largest H-1B employers as much as $18 billion in the first 12 months.

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(With assistance from Andrew Kreighbaum.)

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