Barely two months after a US federal courtroom struck down the Donald Trump administration’s $100,000 cost on new H-1B visa petitions, the administration is making an attempt once more. This time, by way of a proper rulemaking course of and underneath a unique provision of immigration legislation.
The Division of Homeland Safety (DHS) has proposed an additional $103,265 fee on each H-1B petition topic to the annual visa cap. The quantity can be paid by the sponsoring employer on the time of submitting, on prime of present H-1B charges. The proposal will not be but in drive, and has been opened for public feedback for 30 days, after which DHS must contemplate submissions and concern a closing rule.
US Vice President J D Vance backed the transfer, saying: “If an American company wants employees, it ought to rent and practice People.”
The H-1B programme has come underneath heightened scrutiny within the US amid a wider debate amongst its critics over whether or not it’s getting used for its unique goal — permitting firms to fill specialised jobs for which sufficiently expert American employees are unavailable — or as a path to entry cheaper overseas labour.
The Trump administration has argued that some firms, significantly within the know-how sector, have continued to rent H-1B employees even whereas shedding US workers, and that the programme can suppress wages and scale back alternatives for American graduates.
Indians, who’re the most important beneficiaries of the visa programme, stand to lose essentially the most if the present proposal goes by way of. We clarify why.
What precisely is being proposed
The H-1B programme permits US employers to rent overseas employees in “specialty occupations”, sometimes jobs requiring at the very least a bachelor’s diploma. The US Congress caps new H-1Bs at 65,000 a 12 months, with one other 20,000 accessible to individuals with a grasp’s or increased diploma from a US college.
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The brand new $103,265 cost would apply to those cap-subject petitions, together with the advanced-degree class. It could not apply to cap-exempt H-1B petitions, together with many filed by universities, non-profit analysis establishments and authorities analysis organisations.
DHS estimates the price would elevate about $8.8 billion yearly, assuming 85,000 fee-paying petitions. In contrast to a standard visa processing cost, the cash is supposed to assist prices throughout the broader immigration system.
The proposal additionally makes clear that the coverage has a labour-market goal. DHS says a six-figure cost would make employers much less doubtless to decide on an H-1B employee over a certified American except they genuinely want the overseas employee’s specialised abilities.
Why the sooner $100,000 price was struck down
Trump had imposed the sooner cost by way of a September 2025 presidential directive, counting on provisions of the Immigration and Nationality Act that permit the president to limit the entry of foreigners deemed detrimental to US pursuits.
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This June, a US federal courtroom dominated that the $100,000 fee functioned as a tax, not merely an entry restriction. For the reason that Structure provides Congress the facility to levy taxes, the courtroom held that the immigration provisions cited by Trump didn’t clearly authorise the President to impose such a cost. The courtroom additionally discovered the companies’ implementation illegal underneath the Administrative Process Act and vacated the coverage.
The administration has appealed, however the First Circuit Courtroom of Appeals in July refused to pause the decrease courtroom’s order whereas that attraction proceeds.
The largest distinction within the new strategy is the authorized route. As an alternative of relying totally on presidential authority to limit entry, DHS is invoking its statutory energy underneath Part 286 of the Immigration and Nationality Act to set charges that recuperate the prices of immigration adjudication and naturalisation companies. It is usually going by way of notice-and-comment rulemaking fairly than imposing the price immediately by proclamation.
That doesn’t essentially insulate the coverage from one other lawsuit, nonetheless. DHS itself acknowledges that it has not traditionally charged one slim class of immigration candidates to fund such broad prices throughout a number of companies, together with programmes with which H-1B employers might haven’t any direct connection.
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Impression on Indian employees
The stakes are significantly excessive for Indians. US Citizenship and Immigration Companies (USCIS) information present that folks born in India accounted for 71% of all authorised H-1B petitions in FY2024. Individuals born in China come a distant second, hovering on the 12-13% mark since 2018.
Between October 2022 to September 2023, 72% of the practically 4 lakh visas issued underneath the H-1B program went to Indian nationals. Throughout the identical interval, prime 4 Indian IT majors with a presence within the US — specifically Infosys, TCS, HCL, and Wipro — received approval for round 20,000 workers to work on the H-1B visa, as per USCIS information.
Trade physique Nasscom has urged Washington to weigh the programme’s function in filling short-term abilities gaps, whereas mentioning that Indian know-how firms have expanded native hiring within the US and diminished their dependence on H-1B employees.
“The H-1B visa programme has lengthy served an necessary goal in addressing short-term ability gaps within the US,” Nasscom stated in an announcement. “A proposed enhance in visa charges should due to this fact be considered within the context of the programme’s unique goal of enabling entry to momentary abilities the place there’s a scarcity within the US,” it added.
