The Trump administration moved this week to make permanent a fee that, for the past year, has existed only as an emergency measure sitting in legal limbo. On Monday, the Department of Homeland Security published a proposed rule in the Federal Register that would codify a $103,265 charge on new H-1B visas — the program U.S. employers use to hire skilled foreign workers in fields like tech, education and research. The number itself is not new: Trump imposed it by proclamation last year, invoking presidential authority to restrict entry of foreign nationals deemed detrimental to U.S. interests. What changed this week is the vehicle. A temporary order that expires in September is being converted into a permanent regulation, one that could be finalized by the end of the year rather than lapsing back to the $2,000–$5,000 range H-1B fees occupied before.
The legal ground under the fee is still unsettled, which is precisely why the administration is moving now rather than waiting. A federal judge ruled in June that the original fee was illegal and blocked its collection; a Boston-based appeals court is reviewing that ruling, while a separate court is weighing whether a challenge brought by a major business group was properly rejected. The core legal argument against the fee — pressed by the U.S. Chamber of Commerce, a coalition of Democratic-led states, and unions — is that a president’s power to restrict entry does not extend to imposing fees that function as revenue-raising taxes, which under the Constitution requires congressional authorization. The administration’s counter-argument is that the charge is not a traditional tax and that courts have limited standing to second-guess a president’s entry-restriction authority. Both sides are expected to fold the newly proposed permanent rule into their existing litigation once it is finalized, meaning the legal fight continues regardless of what DHS publishes this week.
Two carve-outs matter for anyone trying to work out who is actually affected. The fee would not apply to foreign nationals already inside the U.S. on student visas who convert to H-1B status — a pathway that accounts for a large share of new H-1B recipients — nor would it apply to renewals of existing visas. In practice, uptake of the current $100,000 version has been limited: court filings show only about 70 employers had paid it across 85 visa applications as of late February, a small fraction of the roughly 344,000 H-1B registrations employers filed last year. That registration number is itself down more than 25% from 2024, and less than half of the 794,000 filed in 2023 — a decline that predates this specific fee proposal and reflects the administration’s broader immigration tightening, which this month also added separate fees of up to $4,500 for H-1B extension and intra-company transfer applications, alongside enhanced vetting and a proposed new selection process favoring higher-skilled, better-paid applicants.
Zagdim’s View — The number to watch is not $103,265 itself but the September expiry date on the current temporary order: that is the point at which the fee either lapses back toward its pre-2025 range or gets carried forward by a court injunction or a finalized rule, and neither the litigation timeline nor the rulemaking timeline is aligned to resolve cleanly by then. For anyone weighing an H-1B-dependent move to the U.S. right now, the more immediately relevant facts are the two carve-outs already confirmed — student-visa conversions and renewals are exempt — since those determine who this fee touches at all while the underlying legal fight continues.
