Trump’s $100K H-1B visa fee creates confusion, concerns

Since its inception in 1990, the H-1B visa program has brought thousands of immigrant workers with a specialized skillset to the U.S.

Indiana businesses and universities, like those in every other state, submit thousands of visa petitions to the federal government each year with hopes they can find highly skilled foreign professionals to fill critical positions.

President Donald Trump made a pronouncement in September that put those businesses, and attorneys that help them file visa petitions, on their heels.

Trump’s Sept. 19 proclamation included imposing a $100,000 annual fee on new H-1B visas and rolled out a $1 million “gold card” visa as a pathway to U.S. citizenship for wealthy individuals.

Prior to the proclamation, which triggered almost immediate lawsuits, the annual visa fee for skilled workers was $215.

Ken Robinson, a partner with Ice Miller, said he has received quite a bit of feedback from concerned clients since the proclamation was released.

“We are almost a month out from when the proclamation was issued. It is already having an effect on various industries,” Robinson said, listing technology, engineering, biomedical research and universities as some of the more impacted sectors.

Robinson said he and other attorneys expected more guidance from the administration and are “guessing” right now as to what constitutes a new visa petition and other overall changes to the visa program.

“We really don’t know how to define ‘new petition,’” Robinson said.

Robinson said he does a lot of work with hospitals and universities that are freezing efforts to recruit H-1B petitioners because they don’t know if the federal government will apply the $100,000 fee to those applicants.

The American Immigration Council reported the current statutory cap on the number of H-1B visas issued each year is 65,000, with an additional 20,000 visas for foreign professionals who graduate with a master’s degree or doctorate from a U.S. institution of higher learning.

According to the council, if the federal government receives more petitions than there are visa numbers available, the agency will run a lottery to determine who can file an H-1B petition.

Before an employer can file a petition with U.S. Citizenship and Immigration Services, the employer must take steps to ensure that hiring the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Employers must also provide existing workers with notice of their intention to hire an H-1B worker.

Bernhard Mueller, co-chair of Ogletree Deakins’ Immigration Group, said his firm also received a lot of concerned calls and emails from clients when the proclamation initially came out.

Mueller said he had to initially inform clients that if they had foreign nationals overseas, they needed to get them back to the U.S. immediately.

“Folks were scrambling to get people on planes,” Mueller said.

He said some concerns were allayed when White House officials clarified, a couple of days after the proclamation was issued, that those who already hold H-1B visas and were currently outside of the country will not be charged $100,000 to re-enter and the increased fee only applied only to new visas, not renewals and not current visa holders.

“At the moment, the anxiety level is fairly reduced,” Mueller said.

Legal challenges to new H-1B fee

Trump’s proclamation acknowledged that the H-1B nonimmigrant visa program was created to bring temporary workers into the United States to perform additive, high-skilled functions.

But he argued that it “has been deliberately exploited to replace, rather than supplement, American workers with lower-paid, lower-skilled labor.”

“The large-scale replacement of American workers through systemic abuse of the program has undermined both our economic and national security.,” the proclamation read, with the president claiming that companies had taken advantage of the H-1B visa program.

The new H-1B visa fee has already spawned legal challenges across the country.

In early October, a coalition of health care providers, religious groups, university professors and others filed a federal lawsuit in U.S. District Court in San Francisco to challenge the new fee.

The U.S. Chamber of Commerce also recently sued the Trump administration over the fee.

The Associated Press reported the chamber’s lawsuit alleges that Trump’s new $100,000 visa fees for the H-1B program, which is widely used by Silicon Valley, violated the Immigration and Nationality Act, according to a lawsuit filed in the U.S. District Court for the District of Columbia.

The business group called the fee “not only misguided policy” but also “plainly unlawful” and is requesting that the court block the fee and declare it exceeds the executive branch’s authority.

“The new $100,000 visa fee will make it cost-prohibitive for U.S. employers, especially start-ups and small and midsize businesses, to utilize the H-1B program, which was created by Congress expressly to ensure that American businesses of all sizes can access the global talent they need to grow their operations here in the U.S.,” Neil Bradley, executive vice president at the U.S. Chamber, said in a statement.

Taylor Rogers, a White House spokeswoman, called the administration’s actions “lawful” and “a necessary, initial, incremental step towards necessary reforms to the H-1B program.”

“President Trump promised to put American workers first, and his commonsense action on H-1B visas does just that by discouraging companies from spamming the system and driving down American wages, while providing certainty to employers who need to bring the best talent from overseas,” Rogers said.

Employers watch and wait

The U.S. Citizenship and Immigration Services lists Amazon as the top American employer of H-1B visa workers for fiscal year 2025, with more than 10,000 visa holders working for the company.

Microsoft, Meta Platforms, Apple, Google, JP Morgan Chase and Wal-Mart are among the top U.S. companies that employ thousands of H-1B visa holders.

In Indiana, Elevance Health, Indiana University Indianapolis and Purdue University are among top H-1B visa employers in the state, according to
the USCIS.

The Indiana Chamber of Commerce posted a statement from Adam Berry, the chamber’s vice president of economic development and technology, in late September about the H-1B proclamation and what it means for Indiana employers.

Berry noted that the Departments of Homeland Security and Labor had also been directed to propose new rules that would raise prevailing wage standards and prioritize higher-paying jobs in the H-1B lottery.

“Indiana is particularly impacted, as its employers rely heavily on the H-1B program to fill specialized roles in sectors like engineering, IT and research. In 2024, Indiana businesses filed nearly 2,900 H-1B petitions, with companies such as Cummins, Eli Lilly, Purdue University and Infosys among the top sponsors,” the chamber’s statement read.

A Cummins spokesperson said in an email to The Indiana Lawyer that the company, like many other employers, relies on and benefits from access to a foreign workforce to address employment gaps, drive growth and foster innovation.

“Recent changes to visa policies affecting new H-1B applicants raise concerns about the access to global talent,” the company said. “We advocate for a functional immigration system that supports economic growth and reliable access to global talent.”

Eli Lilly spokesperson Michael Jamison said the company had no comment at this time.

Berry added that for smaller firms, the $100,000 charge may be cost-prohibitive and discourage them from hiring international candidates, while larger employers may absorb the cost but would need to be more selective about which roles justify the expense.

What happens next?

Robinson, the Ice Miller attorney, said he doesn’t believe the new fee will survive legal challenges, citing the California lawsuit that argues Trump overstepped his authority in issuing the new fee.

But he acknowledged that, even if a district court rules against the administration, he wasn’t sure how a higher appellate court or the U.S. Supreme Court might rule on it.

Robinson said he files several hundred H-1B visa petitions annually on behalf of clients and that he only knew of one client that was contemplating paying the $100,000 fee, which Robinson described as “problematically expensive.”

Robinson said if the $100,000 fee somehow withstands court challenges, there could be occasional “rock star” employees that companies decide are worth the cost.

Regardless of how legal challenges play out, Robinson said he anticipated the fees will increase to some extent.

He pointed out the proclamation lasts for 12 months, with the possibility that it may not be extended when it expires in 2026.

On the whole, Robinson said he ultimately didn’t know if the $100,00 fee would be enforced, and he pointed out that the government still hasn’t established a mechanism to collect it.

Mueller noted that Trump publicly stated he had spoken to some CEOs and industry leaders and that they were fine with the announced fee.

But Mueller said: “I haven’t seen any evidence of that being true.”

A question Mueller would like answered is whether the U.S. really has enough qualified applicants to meet the staffing demands in industries that typically employ H-1B visa holders.

“That is the question that needs to be answered,” Mueller said.•