The Trump administration is again seeking to impose a payment for highly skilled worker visas, this time leaving out visas for educational institutions, nonprofits and governmental research organizations.
The Department of Homeland Security filed a notice Monday outlining its plan to charge a $103,265 fee for H-1B visa petitions. In June, a federal judge stopped the Trump administration from charging $100,000 for workers entering the country under the program, which President Donald Trump said had been abused by technology companies.
DHS is justifying the fee as a way to raise revenue for the costs of administering the legal immigration system. The department estimates it will get $8.8 billion annually and said in the notice submitted to the Federal Register that companies seeking to hire H-1B workers have a greater capability to absorb the cost.
“The scope of the proposed fee increase in this rule is significant,” the notice states. “DHS proposes this cost shifting approach with an emphasis on the ability-to-pay principle for determining user fees. Petitioners for H-1B cap-subject nonimmigrant workers generally are required to have the resources necessary to pay the worker(s) for whom the petition is filed.”
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Up to 65,000 H-1B visas are available per year, plus 20,000 for those who have advanced degrees or higher from universities in the country. The fees would apply to everyone applying for those slots, but DHS chose to exempt employees who would be working for higher education institutions and nonprofit and government research organizations.
“Because this is a filing fee, employers would have to pay it with no guarantee that USCIS will approve the petition,” David Bier, director of immigration studies at the libertarian think tank Cato Institute, said in a statement. “Almost no one will risk more than $100,000 with no guarantee of approval.”
DHS’s proposal comes after a federal judge ruled against the fee Trump imposed through a proclamation, labeling the cost a tax that the president didn’t have authority to put in place.
U.S. District Judge Leo Sorokin of Massachusetts also found that the fee violated federal statute because the department did not go through the required rulemaking procedures, such as filing a notice, as it did Monday.
“Defendants’ failure to undergo notice-and-comment rulemaking was not [a] harmless error,” Soroking wrote in a June order. “These additional procedures could have altered Defendants’ decision to impose an unconstitutional tax on the H-1B program or, at the very least, required Defendants to consider the impact of the $100,000 payment obligation on regulated entities.”
The 1st U.S. Circuit Court of Appeals declined to reinstate the fee last month.
Twenty states sued the administration in December, claiming they would lose vital workers such as teachers, nurses, physicians and researchers as a result of the fee.
The new six-figure fee comes as the administration is weighing charging a similar amount for a work permit that allows international university graduates to work in the U.S. for 12 to 36 months.
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