The U.S. Department of Homeland Security (DHS) has published a proposed regulation imposing an additional fee of $103,265 on all new capped H-1B petitions to cover costs it expansively identifies for the entire range of immigration adjudication agencies, including other departments.
This reflects a radical new approach to government funding of immigration adjudications based on aggressive interpretations of existing statutes. We expect aggressive litigation with significant possibility of success in blocking the final regulation. The proposal will have no effect until a final rule is published and any litigation successes are resolved. Nevertheless, employers must consider the possibility of the proposal taking effect for next year's H-1B capped filings (for those successful in the "weighted wage selection" process). The proposal would not affect cap-exempt filings. The proposed fee would be in addition to the $100,000 fee the President has sought to impose through Proclamation 10973, which, at present, is blocked by federal court order pending further appeal.
Our Immigration Team is prepared and well-equipped to guide, assist, and represent employers through this process. If you have any questions or would like more information, please contact a member of Baker Donelson's Immigration Team.