U.S. Considers New Six-Figure Fees Following Appellate Court Decision

On the heels of the decision of the United States Court of Appeals for the First Circuit to deny the U.S. government’s appeal designed to implement the September 2025 $100,000 H-1B visa fee, the U.S. Department of Homeland Security has proposed an additional H-1B visa fee of $103,265.  The newly proposed fee would apply to all cap-subject H-1B petitions, including those eligible for the advanced degree exemption, resulting in a more expansive application than the prior six-figure fee. The newly proposed H-1B fee would not, however, apply to extension, change of employer, or cap-exempt petitions.

In addition, major U.S. media outlets have reported that the executive branch is considering a proposal to add a $100,000 fee to OPT, a common program through which international students contribute to U.S. companies for up to three years after graduation from a U.S. academic institution. 

These announcements from USCIS and the executive branch come nearly one year after the release of the proclamation titled “Restriction on Entry of Certain Nonimmigrant Workers.” Under the proclamation, certain H-1B petitions must be accompanied by an additional $100,000 payment as a condition of eligibility. As drafted and clarified, the proclamation does not apply to petitions requesting an amendment, change of status, or extension of stay for individuals already present in the United States, and only applies if USCIS determines the individual is ineligible for a change of status, amendment, or extension of stay. However, the original six-figure fee has faced a significant scrutiny, delaying its complete and consistent implementation. Following the July 2026 appellate court order, USCIS is not permitted to collect the fee announced in September 2025.  

In contrast, the newly proposed H-1B visa fee of $103,265 would apply to all cap-subject petitions following the completion of a public comment period set to end on Sept. 24. Notably, unlike the prior $100,000 fee imposed through last fall’s presidential proclamation, this proposal will proceed through formal notice-and-comment rulemaking procedures under the Administrative Procedure Act (APA). After  completion of the notice-and-comment process, USCIS will announce whether it will proceed with its implementation, creating a far more expansive group of H-1B applicants subject to the six-figure fee.

Turning to the published rationale, USCIS has stated that, if implemented, the newly proposed H-1B visa fee would generate the revenue needed to cover costs associated with administering a lawful immigration system, such as the adjudication of immigration benefits, fraud detection and national security vetting, systems modernization, records and fee collection operations, immigration court operations, consular visa processing, labor standards enforcement, and interagency coordination. According to current estimates released by USCIS, the proposed fee program would generate approximately $8.8 billion annually. The OPT fee would also create a significant revenue source, estimated to exceed $40 billion should all 400,000 international graduates pay the fee in order to work in the U.S. following graduation.  

Tieranny Cutler contributed to this alert.