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H1-B visas and the $100,000 fee: the latest

Brian Leiter

CHE reports:

Student-visa holders and others who switch their legal status within the United States won’t have to pay a new $100,000 fee on skilled-worker visas.

Guidance issued…by the U.S. Department of Homeland Security clarified that international graduates of American colleges will be exempt from the fee imposed by the Trump administration. Both higher-education and employer groups had been concerned that the cost would disrupt the foreign-talent pipeline and make the United States a less attractive destination for students from overseas.

The way I read this is that only foreign students already studying in the U.S. (on a different visa) will be able to avoid the fee if they want to then take a job in the U.S. that requires the H1-B. This would seem to mean that future foreign graduates of PhD programs in the U.S. may face the fee if they then want to take a job in the U.S. (assuming, of course, that U.S. employers will want to hire them, given the fee). I welcome clarifications and comments from readers. (The H1-B fee is already the subject of legal challenges, including from the U.S. Chamber of Commerce.)

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4 responses to “H1-B visas and the $100,000 fee: the latest”

  1. Matt Xu

    Hi Professor Leiter, I’m your former student. I check your blog everyday!!

    I’m speaking from my pre-law school experience as an immigration law firm paralegal and from general lawyering training (but I have not practiced immigration law since I became a lawyer).

    The on-point language from the guideline is: “The Proclamation also does not apply to a petition . . . that is requesting an amendment, change of status, or extension of stay for an alien inside the United States where the alien is granted such amendment, change, or extension.”

    I read this policy “guideline” to apply to future students too. International students came to this country usually on F-1 visas. The Trump administration hasn’t started charging protection(ist) money for that visa category yet. (Hope I didn’t jinx it.) Upon graduating and securing long-term employment, the F-1 students living in the U.S. apply to adjust their status to an H1-B while still living in the U.S. If they have complied with some technicalities (like maintaining nonimmigrant status through their F-1 period), they would get approval subject to a congressional mandated visa cap. All past and future F-1 students who continuously living in the U.S. adjust to H1-B status through this route. This policy “guideline” says that the administration is not charging the $100,000 fee for this specific route of getting H1-B status. So it should apply to future F-1 students applying for H1-Bs.

    But the $100,000 fee would apply if the F-1 students left the U.S. before the adjustment of status application is approved, even for a short while. The guideline says: “[I]f a petition . . . requests a change of status or amendment or extension of stay and USCIS determines that the alien is ineligible for a change of status or an amendment or extension of stay (e.g., is not in a valid nonimmigrant visa status or if the alien departs the United States prior to adjudication of a change of status request), the Proclamation will apply . . . .” Like that makes any sense even under Trump’s own policy rationale.

    Also, I’d personally argue that this whole $100,000 thing is unconstitutional as an ultra vires act from the President. Congress is supposed to set immigration policies, including fees. And Congress did. See 8 U.S.C. 1184(c)(9)-(13) (setting various fees totaling less than $3000 for H1-B applications). Trump’s protection(ist) money effectively changed the policy set by Congress. Not that Congress is “jealous” enough to protect its own domain right now… The Legal Eagle channel on YouTube (with real lawyers) has put forward a good argument on this point. https://youtu.be/-kz-Hn1k0Lk?si=MOpSTe7rIxr-c-4O

    Reply
    1. Brian Leiter

      Thanks, Matt, that’s very helpful analysis!

      Reply
  2. L. J. Johnston

    I’m not seeing where CHE is getting that “international graduates of American colleges will be exempt from the fee imposed by the Trump administration”. From what I can tell, and from what Matt comments, it would only apply to international graduates insofar as they apply for a change of status while on the F1 student visa, but not if the visa lapses first.

    Reply
    1. Jacob Hamburger

      I’m not sure the guidance subjects future F-1 foreign students to the $100k fee if they seek H-1B status while they’re in the US. I believe the key language from the USCIS guidance (i.e. what the Chronicle is referring to) is the following:

      “The Proclamation also does not apply to a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, that is requesting an amendment, change of status, or extension of stay for an alien inside the United States where the alien is granted such amendment, change, or extension. Further, an alien beneficiary of such petition will not be considered to be subject to the payment if he or she subsequently departs the United States and applies for a visa based on the approved petition and/or seeks to reenter the United States on a current H-1B visa.”

      If you’re here on a student visa and have an approved H-1B petition, you can seek a change of status (i.e. changing from one nonimmigrant status to another while in the US), which is exempted here. You’re right that you would already have to be in the US as an F-1 student (or in some other temporary status) to benefit from this exemption. And other commenters are right that you might lose this option if you leave the US between completing your studies and seeking the H-1B. But I don’t see anything here that distinguishes between someone who is currently in F-1 status and someone who might enter on an F-1 visa in the future and then later seek a change of status to H-1B with an approved petition.

      Of course, all of this is subject to revision as we learn more about what the government is trying to do.

      Reply

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