Trump extends blocked $100,000 H-1B fee after 700 payments

In the year since the White House began demanding $100,000 to bring a new H-1B worker into the United States, employers paid it for a little over 700 petitions. That figure appears in the presidential proclamation signed Sept. 18 extending the payment requirement through Sept. 21, 2027, and it is the most consequential line in the document.

The same figure complicates the Department of Homeland Security's separate proposal to impose a $103,265 fee on all cap-subject H-1B petitions. DHS justified that proposal on the premise that roughly 85,000 petitions a year would still be approved, raising $8.8 billion, as Forbes contributor Stuart Anderson noted in reviewing the two documents together. DHS did not cite the 700-payment figure in its notice of proposed rulemaking.

The proclamation also states plainly what the fee was for. The 2025 restriction, it says, was issued to address "significant abuses" of the program and has "proven to be highly effective," citing a fall in H-1B registrations by the largest IT staffing and outsourcing firms from 24,946 to 2,055, a 92 percent decrease, and a nearly 97 percent drop in consular processing requests between the FY 2025 and FY 2027 cap seasons. DHS's proposed rule rests on a different rationale: recovering "a portion of the full costs of providing immigration adjudication and naturalization services." Deterrence and cost recovery are different rationales, and the administration is now advancing both for nearly the same dollar amount.

The $100,000 requirement is not currently collectible. In June, U.S. District Judge Leo T. Sorokin in Massachusetts, ruling for a coalition of 20 states led by California Attorney General Rob Bonta, held that "The Policy implementing the Proclamation is declared unlawful and is vacated in its entirety," reasoning that the $100,000 payment requirement "amounts to a tax, not a penalty." The First Circuit declined to stay that ruling in July, and the appeal is pending. A separate challenge brought by the U.S. Chamber of Commerce is also before a court, Reuters reported.

Fragomen senior counsel Mitch Wexler said the extension should remain covered by the block because the new proclamation is framed as an extension. "The US Citizenship and Immigration Services (USCIS) remains barred from collecting the $100K H-1B fee under the Sept 2025 proclamation, which was due to expire on Sept 21, 2026," Wexler told The Times of India. "Since the new proclamation is issued as an extension, USCIS should be barred from collecting the $100K fee under the new proclamation as well." Should the appeal go the administration's way and the DHS rule be finalized, Wexler said, the two charges would stack, a theoretical exposure above $200,000 per cap petition.

The second action signed that day has a nearer operational deadline. An executive order directs the secretaries of State, Labor and Homeland Security to take into account, in any labor condition application, petition, visa or entry, whether the sponsoring employer "directly or indirectly engaged in layoffs within the previous year or plans future layoffs that negatively affect the employment of similarly situated United States workers." Within 30 days, the Labor Department's Wage and Hour Division must begin reviewing previously submitted LCA data to determine whether enforcement action against sponsors is warranted.

That is a considerably wider net than the statute casts. Existing nondisplacement obligations attach to H-1B-dependent employers and willful violators, and focus on layoffs in the 90 days before and after a petition is filed. The order reaches back a full year, forward to planned reductions, and on its face applies to every H-1B employer, according to an analysis by Ogletree Deakins attorney Daniela Medrano Sullivan. Employers could face questions at the LCA stage, at USCIS adjudication, at the consulate and at the port of entry. Third-party placement models are the pressure point Sullivan identified: "Consulting, staffing, outsourcing, and other third-party placement models may face particular scrutiny because those arrangements can raise displacement questions at client worksites," Sullivan said.

The order sets no layoff threshold, and implementation is left to forthcoming agency guidance.

Whether agencies can act on it is contested. Immigration attorney Cyrus Mehta, in an interview with Forbes, argued that the order cannot manufacture obligations Congress declined to impose. "Section 212(n) only imposes recruitment and layoff attestations on H-1B dependent employers and willful violators," he said. "Congress specifically chose not to subject all H-1B employers to those obligations." Any attempt to deny petitions or sanction a non-dependent employer solely for conducting layoffs, he said, "would likely be in violation of the statute." Mehta also flagged that the order delegates authority under INA Section 215(a), an entry-control provision, which he said "arguably supports restrictions tied to visa issuance and admission rather than USCIS adjudications of extension petitions filed by individuals already in the United States."

The practical effect he expects is procedural rather than categorical. "If USCIS starts treating recent layoffs as evidence that U.S. workers are available, we could see a significant increase in Requests for Evidence and denials despite the lack of an express statutory basis for such inquiries."

The proclamation's labor-market case rests on figures that changed little over the period it cites. It cites unemployment among recent college graduates at 5.7 percent as of June 2026, against 5.8 percent in September 2025, and underemployment rising from 41.8 percent to 42 percent over the same period, and treats the persistence of those conditions as grounds for another 12 months of restriction.

The entry restriction expires again on Sept. 21, 2027 absent a further extension. Within 30 days of the next H-1B lottery, four cabinet officials must jointly recommend to the President whether to renew it.