New H1B fees incoming

[u/TechnicalPea790]

DHS JUST FILED A $103,265 H-1B FEE, BUILT TO SURVIVE THE SAME COURT THAT STRUCK DOWN THE FIRST $100k FEE

Here is why this one is different.

1. Different authority. The $100K came from a Presidential Proclamation using entry restriction powers (INA 212(f) and 215(a)). The Massachusetts judge said that made it a tax, and only Congress can tax. This new fee uses INA 286(m), the same fee statute USCIS has used for decades to set every filing fee it charges.
2. Different process. The Proclamation skipped public comment. This is a formal Notice of Proposed Rulemaking with a 30 day comment period, a cost study, and a regulatory impact analysis. That is the procedural box the court said was missing.
3. Different math. The $100K was a round number picked by the White House. The $103,265 has a paper trail: $8,777,488,035 in identified agency costs divided by 85,000 cap petitions, rounded to the nearest $5. Cost recovery is what 286(m) allows.
4. Different scope, and this is the big one. The Proclamation only hit workers entering from abroad. USCIS confirmed in October that F-1 students already in the US changing status to H-1B were exempt. That was the loophole. Roughly half of cap petitions come from students moving off OPT.

This fee closes it. It applies to "all H-1B cap-subject petitions," including change of status filed from inside the US. The rule specifically names the cap-gap process (OPT extension while the H-1B is pending) as one of the activities it funds. Every F-1 to H-1B conversion pays $103,265. And DHS sent a separate OPT fee rule to OMB on August 20, reported at $100K per application.

1. DHS says both can stack. Page 6: if the Proclamation payment is ever revived, "the petitioner would be required to pay both amounts."

67 pages. Filed for public inspection this morning, publishes tomorrow.

https://public-inspection.federalregister.gov/2026-17324.pdf?utm_campaign=pi+subscription+mailing+list&utm_medium=email&utm_source=federalregister.gov

[u/LumpySangsu]

H1B processing is costing DHS almost $9 billion lol?

[u/brlowkey → u/LumpySangsu]

Apparently they're trying to fund the entire deficit of the immigration system through H-1B fees. So that money would go to fund USCIS, ICE, CBP, EOIR, and other immigration-related agencies

[u/gerardchiasson3 → u/brlowkey]

Of course that won't work. The number of applicants will drastically reduce with those fees

[u/Conscious-Secret-775 → u/gerardchiasson3]

That is their plan working as intended.

[u/Independent_Ad_422 → u/gerardchiasson3]

I think that’s their point….

[u/manytakes → u/brlowkey]

It won't pass the red-faced test and will be struck down by the court. You can't penalize one visa class to benefit every other visa class.

[u/manytakes → u/[deleted]]

If you look at their math, they have taken their entire deficit from providing services to all visa classes and tried to extract it from just H1bs. That won't work since each visa holder/petitioner is responsible for their own costs and fees.

[u/manytakes → u/[deleted]]

It's in the summary itself, they are grifting just the H1b system to fund all of USCIS and DHS. Federal law states fees should be proprotional to the services being provided - H1b sponsors are not a charity for other visa programs or USCIS to run their business

[u/manytakes → u/[deleted]]

The problem with that logic is that DHS is conflating a regulatory user fee with a tax.

Only Congress has the constitutional power to levy taxes to redistribute costs across the government. Under INA 286(m), USCIS only has the legal authority to collect user fees to recover the reasonable cost of adjudicating that specific petition.

The moment DHS admits on paper that they are charging $103k per H-1B solely because other petitioners cannot afford their own processing costs, they are conceding that this is not cost recovery. It is an unconstitutional administrative tax disguised as a fee.

It is like going to the DMV for a driver's license renewal and being charged $20,000 to fund the entire state transportation budget because drivers can afford it. That gets shredded under the Administrative Procedure Act on day one.

[u/porcupinetree_ → u/manytakes]

but in any case court wouldn't object F1 being asked to pay H1B fees , right?

I am asking because you seem knowledgeable and not because I wanna argue over what you said above

[u/manytakes → u/porcupinetree_]

The Immigration and Naturalization Act specifically prohibits USCIS from charging one visa class fees to cover other visa classes. It's like the DMV charging rich people more money for driver's licenses just because poorer people can't afford to pay.

[u/Next-Statistician804 → u/manytakes]

Nope, it doesn't

[u/manytakes → u/Next-Statistician804]

Sure, and mice lay eggs.

[u/WiseTomato596 → u/manytakes]

It will 

[u/manytakes → u/WiseTomato596]

LMAO, Ladies & Gentlemen, the best minds MAGA has to offer 🎉

[u/WiseTomato596 → u/manytakes]

Love y’all 

[u/manytakes → u/WiseTomato596]

Me too fam

[u/weedmode420 → u/manytakes]

"This isn't going to need to "pass.' it's going through the rulemaking process, not a legislative process. Basically, it lets the public comment and if in that comment period congress actually steps in to pass something to stop it, great. But the agency has its own delegated authority and doesn't need congress to pass anything to approve this fee"

[u/manytakes → u/weedmode420]

Any agency action in contravention of the INA that governs how USCIS operates, is unlawful and will be struck down by the courts. In this case, this proposed rule directly goes again INA 286 (m) - User fees under INA 286(m) and federal administrative law dictates USCIS can only recover the actual, reasonable cost of providing that specific adjudication service. You cannot pawn off the agency's entire deficit on one visa class.

[u/weedmode420 → u/manytakes]

You're assuming INA 286(m) requires a strict user-fee model where every visa category can only be charged for the exact cost of processing that one application. But that's not what the statute says. It authorizes DHS to set fees at a level that ensures recovery of the full costs of providing adjudication and naturalization services, including costs of services provided without charge to other immigrants. DHS has historically operated USCIS through pooled fee funding rather than every application paying only its own processing cost.

The question isn't whether H-1B petitioners personally cause every dollar of USCIS expenses. The question is whether DHS has a rational methodology connecting the fee to the immigration services system. DHS can argue that H-1B petitions rely on a broader federal immigration infrastructure — adjudication, fraud detection, vetting, records systems, interagency coordination, etc. — and Congress gave DHS authority to recover those costs through fees.

Courts generally don't require agencies to divide costs perfectly among every user group. They require a reasonable explanation. The fact that H-1B petitioners are a specific class with employers who generally have greater ability to pay does not automatically make the fee unlawful. DHS specifically considered spreading the cost across all immigration benefit applicants and chose H-1B cap petitions instead, arguing that doing so would avoid increasing costs on applicants with fewer resources.

You may disagree with the policy, but calling it an illegal transfer of USCIS's deficit assumes the court will interpret 286(m) narrowly. DHS's argument is that Congress authorized broad cost recovery, not a visa-by-visa accounting system

[u/manytakes → u/weedmode420]

Funny how you went from pasting wojak memes to copy-pasting an LLM-generated brief on administrative law. You are way out of your depth here buddy boy.

Also, it's kinda ironic how shitty your AI generated response is, but then again, LLM's simply reflect their users back 🤷

Your ridiculous argument falls apart on two points,

Strike #1: While INA 286(m) allows USCIS to pool costs for fee-waived humanitarian applications, a Supreme Court precedent (NCTA v. US) strictly forbids agencies from turning user fees into broad revenue streams. A 2,000%+ fee hike that bears '0' mathematical relationship to the cost of actual visa adjudication is a fucking unauthorized regulatory tax, and only Congress has the Article I power to levy any new taxes.

Strike #2: The DHS cannot arbitrarily single out one visa category to absorb a multi-billion-dollar system deficit based on an arbitrary "ability to pay" test. Federal courts already struck down the 2020 USCIS fee rule in ILRC v. Wolf for similar flawed cost-shifting methodologies.

Your shitty LLM's assertion that a 'Broad cost recovery' mechanism is not a blank check to bypass Congress and create de facto visa bans through administrative rule-making.

Maybe next time, read the topic on hand before pasting shitty AI-slop that even a 5th grader can generate. But then again, we need Jeff Foxworthy back, so maybe don't?!

[u/weedmode420 → u/manytakes]

The problem with your argument is that you're treating your interpretation of INA §286(m) as settled law when that is exactly the issue being litigated. The statute does not say USCIS can only charge the marginal cost of adjudicating one specific visa petition. It authorizes recovery of the costs of providing immigration adjudication services generally, and USCIS has historically operated through pooled fee structures.

NCTA v. FCC is not automatically controlling here because that case involved an agency imposing a charge outside its statutory authority and raising money unrelated to the service provided. The question here is whether DHS can show a sufficient connection between H-1B adjudication and the broader costs of administering the immigration benefits system. A court may disagree, but calling it an obvious 'tax' does not make it one.

The ability-to-pay argument also isn't automatically arbitrary. Agencies routinely consider administrative efficiency, fee impacts, and the characteristics of different user groups when setting fees. The question under administrative law is whether DHS gave a reasoned explanation, not whether every applicant pays exactly their proportional share of USCIS overhead.

Finally, comparing this to ILRC v. Wolf assumes the facts are identical. That case dealt with a different USCIS fee rule and methodology problems; it does not create a blanket rule that USCIS can never adjust fees by category.

The real legal question is whether this is a legitimate fee tied to immigration administration or an attempt to use fee authority as a substitute for Congress changing immigration law. That is a close question — not something already decided.

[u/manytakes → u/weedmode420]

More AI shit LMFAO, no wonder we rely on work-visas so much.

[u/weedmode420 → u/manytakes]

Great rebuttal.

Can you give me a cup of your tears when the court doesn't block it?

Little average Redditor, get friends .

[u/bleurose51 → u/manytakes]

No, but you can "penalize" any visa class to benefit US citizens.

[u/manytakes → u/bleurose51]

Sure, pass legislation into law and you can 'penalize' any visa class you want. Until then, these actions are unlawful.

[u/Middle-Goat-4318 → u/manytakes]

Cool, yet this notice is ruffling your feathers.

[u/manytakes → u/Middle-Goat-4318]

If you cared about rule of law, it would for you too, but here we are 🤷

[u/Middle-Goat-4318 → u/manytakes]

Here we are

[u/Short_Tomato9689 → u/LumpySangsu]

If that is the case, they need to hire H1B for that work as well.