The U.S. Department of Homeland Security is proposing to amend its regulations to add a $103,265 fee to cap-subject H-1B petitions, including petitions eligible for advanced-degree exemption. The fee would not apply to H-1B petitions that are not subject to the cap.
Separately, the Trump administration is considering requiring employers to pay a similar fee to hire an F-1 nonimmigrant (student) visa holder in the Optional Practical Training (OPT) program. DHS has yet to publish any draft language for that proposal.
In September 2025, President Trump tried to impose a $100,000 fee for H-1B visa workers by issuing a presidential proclamation (known as a 212(f) proclamation after the section of the Immigration and Nationality Act that authorizes it) as a restriction of entry. This fee, however, would have only applied to H-1B visa holders seeking to enter the United States (not H-1B beneficiaries already here), was ultimately limited by DHS to just new petitions upon entry, and was later enjoined by a federal court. President Trump’s rationale for imposing that fee was to reduce unfair competition against U.S. workers and abuse of the H-1B visa program to suppress wages generally.
DHS says the objective of this new proposed H-1B fee rule to is generate revenue to support the costs of administering the lawful immigration system across multiple departments and agencies. The INA at sections 286(j) and (m) authorizes the secretary of Homeland Security to set “fees for providing adjudication and naturalization services ... at a level that will ensure recovery of the full costs of providing all such services” and to prescribe rules and regulations to carry out the fee provisions of section 286 of the INA. DHS clarified that the fee will “provide a powerful, reliable, and predictable revenue tool” to address the costs across the immigration system by funding “adjudications, systems modernization, fraud detection and national security vetting, records and fee collection operations, and coordination with other DHS components”, and “support activities related to the lawful immigration system carried out by USCIS, CBP, ICE, EOIR, DOS, and DOL”.
In the rule’s preamble, DHS also acknowledged the fee’s likelihood to reduce the wage gap between H-1B workers and U.S. workers, but only as an indirect benefit of the fee proposal and a reason DHS believes sufficient employers will pay the fee to continue to petition for H-1B workers to meet the numerical limit or “cap” (85,000 per year) for the visa program. Specifically, DHS stated that it
believes the fee would have indirect benefits. DHS believes that U.S. employers, if required to pay an additional $103,265 fee when filing an H-1B cap-subject petition, would be less likely to hire 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. 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 U.S. workers, as the H-1B program is intended to do.
DHS also noted that a recent analysis of DHS's H-1B beneficiary data merged with DOL's LCA data and Census Bureau data on U.S. natives (American Community Survey) indicates that employers pay H-1B workers about 16.1 percent less than the expected wages of comparable U.S. workers. The department, however, did not directly justify the proposed fee as a mechanism to reduce abuse of the visa program, suppression of wages, or unfair competition against U.S. workers as a reason for issuing this rule. Rather, DHS said that it was emphasizing an “ability to pay” approach to recover increasing costs related to implementing the immigration system.
An “ability to pay” approach considers the financial status of a typical petitioner for an immigration benefit when setting fee amounts. Some critics of this approach have said that USCIS is only authorized to set fees to account for actual costs of adjudication of the specific benefit sought. The Biden administration, however, partially adopted this approach when issuing its fee rule in 2024. In that fee schedule, the Biden administration emphasized that an “ability to pay” approach would suppress fees for certain categories, including naturalization applicants, while disproportionately increasing fees for employment-based immigration benefits.
DHS argued then that the “ability to pay” approach was not only lawful but had historical precedence as a basis for fee setting. For example, in the 2016 fee rule issued under the Obama administration, DHS used its discretion to adjust certain immigration benefit request fees that USCIS believed could be overly burdensome on applicants, petitioners, and requestors if set at the recommended model output levels. In that same rule, DHS specifically excluded the EB-5 program fees from such discretionary reductions in response to comments based at least partially on those requestors' ability to pay.
If this rule is finalized and the proposed $103,265 fee takes effect, CIS expects that employers that have relied on the H-1B program to obtain cheaper labor may shift to other immigration pathways that are not subject to the fee or a cap, such as the L-1 visa program. As a result, absent additional reforms, the rule could simply redirect abusive hiring practices rather than eliminate them.
Moreover, CIS believes the OPT program is particularly vulnerable to increased misuse. OPT allows F-1 nonimmigrant students to work in the United States for up to three years after graduation, depending on their field of study, while generally remaining in F-1 status and avoiding the accrual of unlawful presence during their period of employment. Employers seeking to minimize labor costs may also increasingly rely on OPT as a substitute for the H-1B program.