Summary of Key Points
The Trump administration plans to impose a hefty fee of $103,000 on all H-1B visa applications that require a quota allocation. This is another attempt after the previous policy was rejected by the courts last year. The new regulations cover a broader range of applicants (both those outside and within the United States) and follow a more formal legal process (implemented by the Department of Homeland Security), with the aim of addressing fiscal gaps and promoting the “America First” policy by encouraging employers to hire American workers. However, this move is likely to severely impact recent graduates from international countries and small businesses, and it may face significant legal challenges due to potential loopholes.
What’s New About These Regulations Compared to the Last Time?
Compared to the policy rejected by the courts last year, the Trump administration has made the following changes:
1. From a temporary announcement to a formal regulation: Last year, the president issued the policy directly; this time, it has been processed through the official legislative process by the Department of Homeland Security to bypass legal hurdles.
2. From a restriction on applicants outside the U.S. to a coverage of all applicants: Previously, the policy only applied to applicants outside the U.S. Now, whether you are applying from abroad or within the U.S., you will have to pay the fee.
3. From a restriction on entry to a “cost recovery” approach: Instead of focusing on entry restrictions, the administration is presenting it as a way to cover the costs of managing the immigration system, making the policy seem more “reasonable.”
In essence, the administration has put a “legal” facade over the fee collection and expanded its scope of application.
Why the $103,000 Fee?
There are two main objectives behind this fee:
1. To generate substantial revenue to fill fiscal gaps: The government estimates that by charging $103,000 for approximately 85,000 H-1B applications per year, it could earn $8.8 billion, which would help cover financial deficits.
2. To encourage employers to hire American workers: The administration believes that with such a high fee, employers will be more inclined to hire domestic workers. Only when they cannot find suitable Americans will they consider hiring foreigners. This is known as using costs to “screen” employers and implement the “America First” policy.
Attorney Xie Zhengquan stated, “Regardless of the form it takes, the government’s goal is to make it extremely expensive for employers to hire foreign talent.”
Who Will Be Most Affected?
The most vulnerable groups include:
1. Recent international graduates: Students from countries like China and India already face difficulties in obtaining H-1B visas to work in the U.S. (due to low approval rates). With the additional fee, employers are less likely to hire them. Many students will have to rely on OPT (Temporary Work Authorization) programs, which the government previously also wanted to charge $10,000 for, but the proposal was rejected.
2. Small businesses: Employers with 25 or more employees previously only had to pay a few thousand dollars for H-1B applications; now, the fee has increased to $100,000. 76% of small businesses, with fewer employees and lower revenues, will find this cost to exceed 1% of their total revenue and be unaffordable.
3. Employers’ risks: Employers must pay the fee at the time of application, and there is no clear indication in the draft regulations whether the fee will be refunded if the application is denied. This means employers are essentially betting $100,000 on the success of their application, which carries significant risk.
Is This Policy Likely to Be Approved?
Many lawyers believe the new regulations will likely face legal challenges:
1. The fee is significantly higher than the actual cost: The administrative cost of processing an H-1B application is only a few thousand dollars, making the $103,000 charge unreasonable.
2. Authority issues: The Department of Homeland Security does not have congressional authorization to collect such a high fee and cannot use the money for other purposes (e.g., agencies that do not handle H-1B applications).
3. Past experience: The previous policy was rejected by the courts. Although the current process is more formal, the amount charged is still too excessive and could easily lead to legal challenges.
Attorney Lu Ying noted, “This involves the separation of powers in the constitution—the executive branch cannot collect and spend money at will without congressional approval.”
Therefore, even if the new regulations are announced, they may be overturned by the courts, and the chances of them being implemented are low.
In Conclusion
The Trump administration aims to generate quick profits and appease its supporters through the H-1B fee policy. However, this approach harms international talents and small businesses and may be illegal. It is likely to be more hype than actual action. For students and employers considering staying in the U.S., there is no need to panic for now, but it is important to closely monitor the developments.