The $100,000 Visa Fee and the Question Underneath It

The $100,000 Visa Fee and the Question Underneath It

This week a second federal judge blocked the $100,000 fee the Trump administration placed on new H-1B visas, and I have been turning it over in my head ever since. Not because I have a tidy answer on immigration, but because the case forces a question I think we skip too often. Before we argue about whether a policy is good, who actually gets to make it?

Some background. The H-1B program lets American employers hire foreign workers in specialized fields like engineering, software, and medicine. Congress caps new visas at 85,000 a year, and for years the filing costs ran a few thousand dollars. Then a presidential proclamation in September 2025 added a $100,000 charge to new petitions. In August, the Department of Homeland Security proposed making it permanent at $103,265, according to KFF.

This week, Judge Haywood Gilliam in Oakland ruled that the agencies skipped the rulemaking steps the law requires and blocked them from enforcing the fee until they follow that process, as JURIST and Bloomberg Law reported. The lead plaintiff was Global Nurse Force, a California nurse recruiting firm. A judge in Boston found the policy unlawful in June. A judge in Washington sided with the administration last year. With the courts split, most observers expect this to end up at the Supreme Court.

I want to be fair to the case for the fee, because it is not made up. The White House says the fee protects “Americans from cheap, foreign labor,” as CBS News reported. A 2024 Heritage Foundation analysis found H-1B workers earn significantly less than their American counterparts, and that tying a worker's visa to one employer makes it hard for that worker to leave or bargain. Even economists who oppose the fee, like Rutgers labor economist Jennifer Hunt, told CBS that native born programmers could see some job gains in the near term. Anyone who has watched a company lay off a team and then backfill the work through an outsourcing firm understands why this hits a nerve.

But I keep coming back to who actually pays a flat $100,000. A large firm can absorb it or route around it. A small employer cannot. The government's own regulatory analysis, as cited by Hoodline, estimated that about 76 percent of small businesses filing cap-subject H-1B petitions would take a hit of more than 1 percent of their annual revenue. Bloomberg Law reported back in February that few businesses were paying the fee at all, which tells me it worked less like a toll and more like a wall.

The story that stuck with me came from KFF Health News, which visited a small hospital in Hettinger, North Dakota, a town of about 1,000 people. The hospital had been trying to hire a lab technician and received more than 30 applications from the Philippines and Nigeria, and none from American citizens. That is not a hospital replacing Americans with cheaper labor. That is a hospital trying to keep its lab open. George Mason economist Michael Clemens warned CBS that the policy could “choke off job opportunities for the people it is supposed to help,” and in places like Hettinger, I can see how.

So on the substance, I end up somewhere in the middle. I think the wage concerns are real and worth fixing. I also think a single flat price is a blunt tool that lands hardest on the employers with the fewest alternatives, and does less than it promises against the ones who actually game the system.

What I feel more strongly about is the process. The Gilliam ruling is not really a verdict on whether H-1B reform is a good idea. It says that if the government wants to rewrite the economics of a program Congress designed, it has to follow the rules: publish its reasoning, take public comment, and weigh the costs. The plaintiffs also argued that a charge this size is effectively a tax, and only Congress can tax.

I would feel the same way if this were a policy I liked. Rules made by proclamation can be unmade by the next proclamation. Employers, hospitals, and the workers themselves cannot plan around a rule that might flip with every election or every court ruling. Real reform, like raising wage floors or cracking down on firms that flood the visa lottery, would be more durable and more legitimate coming from Congress, out in the open, with people on the record.

That may be the least exciting take available on a hot-button issue. But I have come to think boring and durable beats bold and fragile.

Thoughts? Reach me at danielk@outlook.com.