What is Going on with the Proposed Fees for H-1B and F-1 OPT?
With the various fees and proclamations, followed by litigation, it has become difficult to keep track of what has been announced, what has been judicially blocked, and what is in force, if anything. This article summarizes where we stand.
The $100,000 H1B Fee
Last week, on September 30th, another U.S. District Court blocked DHS from collecting this fee (Global Nurse Force v. Trump). This ruling follows a June 8th U.S. District Court decision (State of California et al. v Markwayne Mullin, et al.) that blocked the fee, which was followed by a First Circuit Court of Appeals ruling against the Trump administration in declining to pause the District Court decision.
Adding to the confusion is the fact the Trump administration announced an extension of the fee on September 21st, even though the fee being extended remains blocked.
The bottom line: USCIS cannot require or collect the $100,000 fee, but the Trump administration is appealing the rulings.
The $103,265 H1B Fee
The administration has proposed a new rule to assess a $103,265 fee for all future cap-subject H-1B petitions, including regular cap filings (65,000) and the advanced-degree cap filings (20,000). All cap-exempt H1B petitions would be exempt from this fee.
This proposed rule is not finalized. DHS must review the public comments before deciding whether to issue a final rule or face expected legal challenges.
The bottom line: if DHS issue a final rule to implement the $103,265 H-1B fee, legal experts and business groups are highly likely to file immediate lawsuits. Based on recent court decisions, a federal court would very likely issue a preliminary injunction to block the fee, with a high probability of the fee ultimately being struck down permanently as an unlawful "tax".
The $70,000 OPT Fee
This week, DHS proposed regulation that would require U.S. universities to pay a $70,000 fee to recommend an F-1 student for Optional Practical Training (OPT) and a $30,000 fee for each subsequent OPT recommendation (with the universities allowed to recoup the fees from the student or employers). The fees would apply only to OPT recommendations made after the new rule takes effect.
The rule is at the beginning of the 30-day comment period after which the DHS must review the public comments before deciding whether to issue a final rule.
The bottom line: if the rule is finalized for implementation, legal challenges by U.S. universities and business groups are extremely likely.
Conclusion
Keeping track of the proposed fees and the inevitable legal challenges can be dizzying. Unfortunately, the Trump administration continues trying new hurdles despite the challenges faced by U.S. businesses in terms of hiring the best and brightest for hard-to-fill positions amid a global competition for tech leadership.
Ironically, while Trump’s administration tries to make employing foreign nationals more challenging, he presented six tech leaders with the National Medal of Technology and Innovation and National Medal of Science awards. Of the six tech leaders receiving an award yesterday, five are immigrants: Satya Nadella (India), Elon Musk (South Africa), Sergey Brin (Russia), Jensen Huang (Taiwan), and Lisa Su (Taiwan).
Regarding Nadella, the president stated, “Satya Nadella has been a key figure in the transformation of Microsoft, revolutionizing the company and empowering businesses, students and consumers from all over the world with some of the most capable software ever built,” while on the same day, his Vice President, J.D. Vance, accused Microsoft of abusing the immigration system and suspended the company indefinitely from the PERM labor certification program.
ILG will continue monitoring these developments and provide updates as they become available. If you have questions, please contact your ILG attorney or reach our firm.