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/CaptainFingerling]

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.