President Trump signed a proclamation on Friday that will add a $100,000 fee to H-1B petitions. The fee would be added to petitions for H-1B workers who are currently located outside the U.S. and are entering after 12:01 a.m. EDT on September 21, 2025, and expires on September 21, 2026.
The proclamation also includes a narrow list of exceptions to the $100,000 fee, including existing H-1B holders who are already in the U.S. or visa renewals for individuals who are physically present in the U.S. In some cases, employers may also apply for a national interest waiver for the fee. The proclamation gives the Secretary of Homeland Security the discretion to decide whether a national interest exception is warranted.
Congress capped H-1B visas at 85,000 a year, not including explicit exemptions (such as for institutes of higher education and certain types of non-profit work) written in to law and regulation. H-1B visa holders, however, may remain in the United States for up to six years. USCIS’s most recent publicly available estimate put the population of H-1B visa holders in the United States to over 583,000 people in 2019; however, it is plausible that as many as 700,000 are authorized to work in the United States in 2025. DHS’s FY 2024 nonimmigrant population estimate shows about 3.6 million nonimmigrants residing in the U.S. under categories associated with temporary residence.
Need for Reform
Adding a $100,000 fee to H-1B petitions demonstrates a clear policy objective to protect the domestic workforce against unfair labor competition in high-skill occupations. Since its creation, the program has been sold to the Americans as a legal mechanism to fill high-skill positions when there are not sufficient willing and able U.S. workers. Instead, loopholes in H-1B laws and regulations have allowed corporations to use the H-1B program as a labor cost-savings program, directly undermining domestic labor interests.
These loopholes allow employers to pay foreign workers less than their American peers, hire foreign workers without first trying to hire Americans, and insulate businesses from scrutiny if they submit inaccurate labor certification applications. American workers, especially recent graduates trying to break into tech, are left competing on an uneven playing field. The program has allowed wage growth to stall, job opportunities to shrink, with the supposed “shortage” of talent appearing like more of a manufactured talking point than a reality.
By adding this fee, it is clear that the Trump administration is trying to put their finger on the scale in favor of hiring U.S. workers by ensuring that businesses that hire H-1B workers have a true need for the worker and prioritize workers that provide the greatest benefit to the employer. Substantive reform in the form of legislation and regulatory amendments, however, is still desperately needed to correct course.
212(f) Restriction on Entry
In a historic use of this authority, President Trump fashioned this new H-1B visa fee as a “restriction on entry”, which is permitted by the Immigration and Nationality Act (INA) at sections 212(f) and 215(a). Generally, fees for visas are set by the U.S. Citizenship and Immigration Services (USCIS) through regulation.
While these authorities have been used repeatedly by presidents of both parties to restrict the entry of aliens that they deemed are “detrimental to the interests of the United States”, President Trump most famously used this authority to issue the so-called “travel ban” to suspend the entry of aliens from countries DHS determined had unreliable procedures for vetting out terrorists.
In 2018, U.S. Supreme Court held, in Hawaii vs. Trump, that INA § 212(f) gives the President “ample power” to restrict entry of noncitizens when he finds their entry “would be detrimental to the interests of the United States.” While that case did not specifically consider whether these authorities could be used to add conditions – such as payment of a $100,000 fee – to entry, INA § 212(f) explicitly authorizes the President to “impose … any restrictions he may deem to be appropriate.” Moreover, § 215(a) states, “Unless otherwise ordered by the President, it shall be unlawful (1) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe…”
Existing H-1B Fees
While the new fee is directed by presidential proclamation as a “restriction on entry”, USCIS separately has the legal authority to set fees for immigration benefits and related services. INA § 286(m) allows the Attorney General (now the Secretary of Homeland Security, through USCIS) to set fees at a level that ensures recovery of the full costs of providing adjudication and naturalization services and authorizes the use of fee revenue to fund those services.
Accordingly, businesses are already required to pay fees to bring foreign workers to the United States, although these fees typically have been adjusted to cover USCIS’s costs of administering the guestworker program and other costs USCIS bears to provide free immigration benefits to other types of immigrant and nonimmigrant visas. Federal law generally requires that USCIS fees for foreign workers be paid by their employer, not the foreign worker.
Current fees for H-1B petitions are set at $780, not including a $215 registration fee for each worker. A large employer with more than half of their staff in H-1B or L-1 nonimmigrant status must also pay a $2,000 fee under INA section 214(c)(B), and a $750 or $1,500, depending on the size of the employer, for initial H-1B petitions to the Department of Labor and the National Science Foundation to contribute to worker training and STEM scholarships.
USCIS also charges a $500 fraud detection fee for all initial H-1B petitions or changes of employer. The H-1B program, like other guestworker programs, has been found to contain significant fraud that often results in the exploitation of foreign workers at the expense of the domestic labor market. Federal law generally requires the employer, not the worker, to pay these fees.
USCIS also allows employers to pay what are known as “premium processing” fees to expedite the processing of petitions for immigration benefits. In the H-1B context, premium processing fees are currently set at $2,805. Unlike the fees listed above, a foreign worker could pay this fee voluntarily.
In 2024, the Biden administration additionally imposed an “asylum program fee” to the fees that H-1B and other-petitioning employers must pay on top of all other necessary fees in order help fund the administration’s “asylum processing rule”, in effect subsidizing that administration’s weak border policies and fast track asylum decisions outside of immigration court. While many fees USCIS charges have always partially been used to cover the free immigration benefits the agency administers (like asylum and other humanitarian benefits), the Biden asylum program fee was unusual because it was the first of its kinds to explicitly transfer the growing costs of their asylum program to specifically businesses petitioning the agency for employment-based immigration benefits.
Additional Measures the Trump Administration Can Take to Fix the H-1B Problem
As I’ve written about before, the quickest and easiest reform the Trump administration (or Congress, for that matter) can make is to reinstate the rule it finalized on January 8, 2021, that requires USCIS to select the highest-paid H-1B petitions in years where the demand of H-1B workers exceeds the supply of visas. Currently, USCIS conducts a random lottery, which not only allows the lowest-skilled workers to crowd out the “best and brightest”, but also gives no weight to industries or occupations that have the greatest need for more workers. This reform was also abandoned by the Biden administration before it could go into effect, but recent reporting and CIS sources say the re-proposal of this reform is already in the works.
Additionally, Congress can require that employers conduct labor market test by requiring companies who want to bring on H-1B workers to make a bona fide attempt to hire a U.S. worker before petitioning for a foreign worker. This, of course, would also require the Department of Labor to strengthen its existing labor market test rules for other guestworkers types.
Additionally, because federal law already requires companies to attest that they “will not adversely affect” employees on an H-1B hire’s way in, it should also require companies to prioritize the retention of their American workforce (i.e., U.S. citizens and green card holders) over temporary nonimmigrant workers in similar occupations when workers must be laid off. I also see no reason to limit the requirement that an employer will not displace an U.S. worker to H-1B-dependent employers or to limit the unlawful displacement period to just the 90 days before and after submitting a petition.
These are all small tweaks to the statute and regulation that would protect the interests of U.S. workers and foreign workers alike. They would also benefit businesses that are impeded from bringing on talented workers because of third-party recruiters and other importers of cheap labor that abuse the program.