The Department of Homeland Security (DHS) on Monday published a proposal for a $103, 265 fee imposed on those filing a cap-subject petition for an H-1B visa. The new fee would apply to all H-1B petitions, regardless of if the worker is inside or outside of the US, except for those filed by universities, certain non-profits like hospitals, government positions, or visa renewals.
This proposal follows the June declaration by a federal judge and a subsequent affirmation by an appeals court, that US President Trump’s previous $100,000 fee on H-1B visas violated the separation of powers doctrine and was therefore unconstitutional. As attempts to implement the original fee proved unsuccessful, at least temporarily, the Trump administration has taken a different avenue to further this piece of their agenda, using agency rule-making as opposed to presidential power.
The H-1B visa program is the most common way for employers to retain temporary foreign workers in speciality positions. Visas issued under the program by US Citizenship and Immigration Services (USCIS) are capped at 65,o00 per fiscal year and the proposed fee applies to any visa petition that is not exempt from the cap. Additionally, the fee is applied on top of all other fees incurred in applying for the visa, including the previous, and potentially revivable, 100,000 fee, and it is only an application fee, not a guarantee that the visa will be approved.
H-1B workers make up approximately 730,000 employees in the US and contribute an estimated $86 billion to the federal economy and $11 billion to state and local tax revenues.
DHS indicated in their rule that the purpose of the fee is to recover immigration and customs related costs incurred by federal agencies in enforcing mechanisms of “the lawful immigration system.” Acquired funds will be put towards operations like immigration court proceedings, consular visa processing, enforcing labor standards, and inspection and enforcement activities at ports of entry.
The federal agency is taking their legal authority from both the Immigration and Nationality Act and the Homeland Security Act of 2002, specifically the portion that designates that the secretary may set “fees for providing adjudication and naturalization services… at a level that will ensure recovery of he full costs of providing all such services.”
The proposed fee has already been sharply critiqued by think tanks such as the CATO Institute for its potential to decimate the H-1B visa program and existing legal deficiencies regarding the ability to effectively raise funds for the programs that DHS has specified.
Pursuant to the statute governing notice and comment rulemaking, once the rule is published in the federal register, it will remain open for public comment for a period of 30 days.