By executive order in September 2025 the current administration implemented a $100,000 surcharge for some H-1B visa petitions (for high-skilled workers in jobs that require a bachelor’s or higher degree). After an uneven rollout, conflicting guidance and adjudications, and court challenges, the fee does not apply at present. Despite the uncertainty around the legality of imposing an enhanced filing fee by executive order, the administration renewed the fee for another year by executive order on September 18, 2026. The new iteration of the fee, even though unlawful at present, states that it applies to anyone who will need a new H-1B visa from a consulate abroad to enter the United States. It does not apply to individuals extending their H-1B status while remaining in the country. The new expiration date is September 21, 2027. That is, only if it survives the ongoing litigation.
As a backup to the shaky executive order approach, USCIS published a proposed rule on August 25, 2026 for a supplemental fee of $103,265 that would apply to any cap-subject H-1B petition. Cap-subject petitions are those that require one of the annually available 85,000 visas through the H-1B lottery that runs in March. Comments were due in late September. The expectation is that the rule could be in place for petitions filed following the March 2027 lottery selections. The practical implication is that such an exorbitant fee will cause many employers to forgo sponsoring employees, which is precisely the flawed and shortsighted policy aim of all this $100K fee business.
Much of the commentary in the executive orders and proposed rule centers on alleged fraud and job protection. It very much takes an either/or approach. Why not choose the yes-and approach to uncover and stop fraud while allowing employers to retain the talent they need? As the famed columnist Thomas Friedman astutely observed, what the U.S. should be doing is stapling a green card to any foreign student who earns a graduate degree in the United States.