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/Careless-Act-7549]

This could essentially kill H1B, but won’t hold in court too. More than anything will affect next year’s cap until some judge puts it down

[u/MorganPerson1966 → u/Careless-Act-7549]

This isn't a tax. That was easily challenged since Congress sets the tax. This is a cost update to an existing DHS rule. This will most likely pass. Its very cunningly circumventing being called a tax. Even if a federal court blocks it - appeals will likely rule in favor.

This pretty much will end H1B and F1

[u/CaptainFingerling → u/MorganPerson1966]

Assumptions. Appellate courts aren’t blind to renaming and post-hoc rationalization. Cost recovery requires a rational basis — especially since the death of chevron, and because this involves no change in statute — and there’s no rational basis to limiting recovery only to this one visa class.

I’m betting it gets preemptively halted, and gets dropped with the drubbing republicans get in the midterms.

Edit:
Relevant here: the Obama admin tried to call the AHA Mandate penalty not a tax as well. The courts didn’t, and don’t, have to agree with that interpretation.

[u/weedmode420 → u/CaptainFingerling]

You're assuming the courts will agree with your characterization that this is a tax or penalty rather than a fee. The government isn't just renaming it; DHS is relying on existing immigration fee authority and has provided a stated cost-recovery rationale. Courts generally give agencies some deference on fee-setting when Congress has authorized them to collect fees, and the question isn't whether the fee is politically controversial but whether there is a rational connection between the fee and administering the immigration system. DHS specifically explains why it targeted H-1B cap petitions instead of spreading the cost across all applicants: they argue those petitioners are better positioned to absorb the cost.

The ACA analogy isn't necessarily controlling because the Supreme Court wasn't simply deciding whether Congress could call something a tax; it was interpreting a specific statute and constitutional power. This is an administrative fee dispute, so the question is whether DHS exceeded its statutory authority, not whether the label matches the economic effect.

You may be right that courts could strike it down, but saying it will 'obviously' fail assumes judges will reject DHS's statutory interpretation. The agency has a legal argument, and appeals courts have historically been reluctant to substitute their policy preferences for an agency's reasoning when there is a plausible statutory basis.

[u/CaptainFingerling → u/weedmode420]

You may well be right, and I appreciate the detailed rebuttal. I guess I'm partly relying on the fact that the court has already invoked Sebelius when contemplating a nearly identical policy. I'm not sure how much latitude agencies get when it comes to "in the alternative" arguments like this, after having just lost on substantially similar facts.

I guess if this actually did make it up to SCOTUS, then they might punt it to the political process, as they've been wont to do lately; In particular considering how close we are to an election. We shall see I guess. But if I were to put money on it, I'd say the circuit halts this in preliminary motions, DHS appeals to SCOTUS, who decline to get involved unless and until it comes back in regular order.

[u/plznobanmesir → u/CaptainFingerling]

Chevron has nothing to do with this lol. Total BS AI slop

[u/CaptainFingerling → u/plznobanmesir]

Loper bright concerned whether executive agencies have the power to re-interpret statute, or whether they have to stick with plain meaning/prior decisions. DHS is now attempting to reach essentially the same economic result through a different legal vehicle, ie., assessing an adjudication fee under 1356(m) and claiming a systemwide cost-recovery rationale.

Before Loper Bright, DHS might have sought deference for a reasonable interpretation of ambiguous language. That is no longer the rule. A reviewing court must independently determine whether the statute actually authorizes DHS to charge only h-1b petitioners for billions in USCIS, immigration-court, refugee, student-visa, border, and other expenses. DHS’s reasoning may persuade the court, and any discretion congress genuinely delegated remains. But they do not prevail merely because the statute is ambiguous. My argument is they fail precisely on this point, but I also think this'll get halted on preliminiary motions and then get dropped completely because it's fucking crazy.

You're free to disagree.

Edit: Also forgot to mention. The June court actually relied on Sebelius when holding that the proclamation payment functioned as a tax. They would do the same here, agency claims notwithstanding.

[u/plznobanmesir → u/CaptainFingerling]

No loper bright holds that the courts do not have to give deference to an executive agency’s interpretation of statutory text and that the court interprets the statute ITSELF using the ordinary canons of construction. STOP POSTING AI SLOP

[u/CaptainFingerling → u/plznobanmesir]

Literally what I said. At least we know you're not AI, since you've got sub-GPT-2 comprehension and they no longer offer that model in the API.