- The D.C. Circuit Court will hear oral arguments regarding the controversial $100,000 H-1B visa surcharge.
- The fee applies to new H-1B petitions for workers outside the U.S. or requiring consular processing.
- Business groups argue the surcharge bypasses Congressional authority and creates an unlawful barrier to talent.
(UNITED STATES) — The U.S. Court of Appeals for the D.C. Circuit will hear oral arguments on March 9, 2026, in a business-backed challenge to a $100,000 H-1B fee imposed under a Presidential Proclamation.
The case, U.S. Chamber of Commerce v. DHS, comes as scrutiny grows over the economic research the government has cited to justify the surcharge and as employers and immigration lawyers adjust filings to avoid immediate denials.
USCIS and DHS have defended the fee as a way to protect U.S. workers and to ensure the H-1B program is used only for “the best of the best.”
President Trump established the fee in the Presidential Proclamation, “Restriction on Entry of Certain Nonimmigrant Workers,” signed on September 19, 2025, and effective September 21, 2025.
USCIS updated its public guidance on Feb 27, 2026, and framed the surcharge as a condition tied to eligibility for certain petitions. In an alert, the agency said “certain H-1B petitions filed at or after 12:01 a.m. Eastern on Sept. 21, 2025, must be accompanied by an additional $100,000 payment as a condition of eligibility.”
That filing-time trigger has mattered for employers planning start dates and deciding whether a beneficiary can proceed through an in-country process or must instead rely on consular processing.
The agency’s guidance generally captures new H-1B petitions when the beneficiary sits outside the United States, and cases where a beneficiary is in the U.S. but must use consular processing, including those ineligible for a change of status.
Employers filing extensions or amendments generally avoid the surcharge under the agency’s stated approach, as do many change-of-employer filings for workers already in H-1B status.
F-1 students already in the U.S. who successfully change status to H-1B generally do not fall under the surcharge in the exemptions described in the policy’s implementation.
The guidance also describes a narrow exception concept, with USCIS tying it to a Homeland Security Secretary determination and an unusually high threshold. The Secretary of Homeland Security may grant exceptions only in “extraordinarily rare circumstance[s]” where the worker’s presence is deemed in the “national interest” and “no American worker is available to fill the role,” the USCIS alert said.
USCIS has also made the mechanics of compliance a front-end issue, rather than something that can be cured later.
The agency requires proof of payment through Pay.gov to be submitted with the Form I-129 petition, and it treats missing proof as a fatal defect. Petitions filed without this proof are denied immediately.
That position has pushed employers and attorneys to build filing packets around payment confirmation, often documenting the Pay.gov confirmation within the submission materials and running internal checks before dispatch.
The legal fight now unfolding in Washington has also pulled attention to the study that opponents and supporters cite when debating whether a six-figure surcharge reflects labor-market realities or serves as an entry barrier.
Harvard Professor George Borjas, a former senior policy adviser to the Council of Economic Advisers, wrote a February 2026 working paper titled “The H-1B Wage Gap, Visa Fees, and Employer Demand.”
Borjas’ paper claims H-1B workers earn approximately 16% less than comparable U.S. workers, and it links that differential to employer incentives over a six-year visa term.
He also argued that a fee between $118,000 and $264,000 would be “revenue-maximizing” without significantly reducing demand.
Critics, including the Economic Innovation Group, have challenged the paper’s construction and inputs and have called out what they described as “data errors.”
EIG also alleged a “temporal mismatch” in which, it said, Borjas compared H-1B wages from 2020–2023 against 2023 consumer prices, effectively “comparing 2020 wages with 2023 prices.”
The group further argued that the results look different within subgroups, saying younger H-1B workers (under 34) actually earn a wage premium over native-born peers.
Those disputes over methods and time periods sit alongside the litigation’s core legal question: whether DHS and USCIS can impose the surcharge as implemented, or whether the move steps into territory reserved for Congress.
In the D.C. Circuit case, business groups argue the fee is an “unlawful surcharge” that bypasses Congressional authority to set immigration fees.
Parallel challenges have moved on their own tracks, including litigation from state officials and from employers focused on specific labor markets.
On Feb 6, 2026, the California Attorney General filed a motion for summary judgment seeking a permanent injunction, calling the fee an “unlawful” barrier to talent that harms the state’s economy.
A separate case, Global Nurse Force v. Trump, has centered on the effect on smaller organizations and particular kinds of petitioning employers.
A federal court in Oakland heard emergency motions on Feb 26, 2026, to block the fee for small and nonprofit employers who claim the cost “effectively eliminates” their access to the H-1B program.
The fee’s reach depends not just on job offers, but on where the beneficiary is located and which pathway the petition requires, making triage and timing a major part of employer planning.
Companies that routinely recruit abroad face the most direct exposure, since the policy applies to new H-1B petitions tied to consular processing and to beneficiaries currently outside the United States.
At the same time, many employers rely on extensions, amendments, and H-1B transfers involving workers already in the U.S., categories that the exemptions described by USCIS generally place outside the surcharge’s scope.
Immigration lawyers have also focused on edge cases, including situations in which an in-country change of status might proceed differently from consular cases, depending on the beneficiary’s circumstances and eligibility.
Beyond the surcharge itself, employers have continued to discuss how H-1B costs stack across required and optional payments, particularly when speed becomes a priority and expedited processing enters the decision.
For employers and beneficiaries trying to confirm current requirements and any updates, USCIS maintains its H-1B information on its H-1B Specialty Occupations page.
The underlying proclamation that set the surcharge sits separately on the White House site as “Restriction on Entry of Certain Nonimmigrant Workers”, and it has become a central document in the court challenges that now put the policy’s future before the D.C. Circuit.
