DHS Proposes a $103,265 Fee on Every Capped H-1B Petition, Two Months After a Judge Struck Down the $100,000 Version

The Department of Homeland Security issued a proposed rule Monday that would charge $103,265 for every H-1B petition subject to the annual statutory cap. USCIS spokesperson Zach Kahler said the fee "is intended to recover the costs incurred across the federal government to adjudicate, vet, and support lawful immigration programs that otherwise must be funded by taxpayers," and the notice says proceeds would also fund Justice, State and Labor Department work. The standard cap is 85,000 visas a year. Universities, hospitals and research institutions covered by the earlier proposal are excluded this time.

The move follows a June ruling by U.S. District Judge Leo Sorokin striking down the administration's $100,000 H-1B fee on the ground that Congress alone sets immigration taxes. Recasting the same charge as cost recovery through notice-and-comment rulemaking tests whether a fee at that scale can survive the reasoning that defeated the first one.

The rule is a proposal with no effective date. Officials said it would publish in the Federal Register on Tuesday, opening a 30-day comment period. Cato Institute analyst David Bier said the earlier fee cut filings by nearly 90 percent and lost $28 million in revenue.