While a federal court blocked the Trump administration’s $100,000 H-1B fee imposed last year, the administration is trying again — this time proposing a $103,265 fee through a federal rulemaking process.
Roger Tsai, an immigration attorney with Faegre Drinker’s Denver office, said the change is part of a broader tightening of employment-based immigration that is already affecting how employers approach foreign workers.
“What we are seeing is a chilling effect,” he said.
A Second Attempt at a Six-Figure Fee
The administration’s original $100,000 payment took effect in September 2025 for certain H-1B petitions. A federal judge ruled in June that the administration lacked authority to impose the payment and vacated the policy. The government appealed, but the 1st U.S. Circuit Court of Appeals declined to pause the lower court’s ruling in July, leaving the $100,000 fee blocked while the litigation continues.
Now the U.S Department of Homeland Security is pursuing a different legal mechanism.
Rather than imposing the charge through a presidential proclamation, the agency has proposed a $103,265 fee on cap-subject H-1B petitions. DHS estimates the fee would generate about $8.8 billion annually to support the costs of administering the lawful immigration system. The proposal is currently subject to public comment.
Tsai said the new approach could face its own legal challenges. “I would be concerned if I were an attorney for the U.S. government and trying to defend the Department of Homeland Security policy,” he said.
Among the questions, he said, is whether the agency followed appropriate procedures under the Administrative Procedure Act. Tsai also questioned whether the new fee is disproportionate, given that employers already pay thousands of dollars in government fees associated with H-1B petitions. “Is this effectively duplicative?” he asked.
Employers Become More Cautious
For employers, the practical effect extends beyond whether the proposed fee ultimately survives legal challenges.
“The unsaid is HR is being much more thoughtful about the candidates that they put forth,” Tsai said.
H-1B visas are commonly used for professional positions requiring specialized knowledge and at least a bachelor’s degree. The program provides 65,000 visas annually for workers with bachelor’s degrees, with another 20,000 available for workers with qualifying advanced degrees.
International students graduating from U.S. universities are an important part of that pipeline. Many F-1 students use optional practical training, or OPT, to work after graduation and then seek H-1B status through the annual lottery.
Tsai said employers are increasingly concerned about the uncertainty surrounding that process. At the same time, demand for H-1B workers in some technology fields has changed with the rise of artificial intelligence.
International Students Face Additional Changes
The H-1B proposal is not the only change affecting the foreign worker pipeline.
A DHS rule finalized this summer changes how F-1 international students are admitted to the United States, replacing the longstanding “duration of status” framework with fixed admission periods. The rule also reduces the post-completion departure period for F-1 students from 60 days to 30 days.
Tsai said universities are also watching potential changes affecting the employment authorization programs that allow eligible international students to work after graduation.
“It is a tightening of constraints on international students,” Tsai said.
Eliminating a Grace Period
A separate DHS proposal would eliminate the current 60-day grace period available to certain nonimmigrant workers, including H-1B workers, after termination of employment.
Tsai said that proposal has not yet been formally published in the Federal Register and could change.
The existing grace period is significant because H-1B workers’ immigration status is closely tied to employment. The grace period gives workers time to seek another position and, when appropriate, have a new employer file a petition.
“This was [written] to ensure that H-1B workers were not shackled to an employer,” Tsai said.
Litigation to Continue
Tsai expects business groups and others to challenge the new H-1B fee if it is finalized. The U.S. Chamber of Commerce was among the organizations that challenged the earlier $100,000 payment, and Tsai said business interests are likely to remain involved in litigation over subsequent immigration restrictions.
For employers and foreign workers, however, the uncertainty itself is already having an effect.
His firm has received a “significant number of calls, asking, ‘If ICE were to show up at our workforce, how would we respond?’”
Tsai added, “Life feels much more precarious” for many foreign workers.