- The $100,000 H-1B fee impacts mainly overseas workers, leaving domestic applicants largely exempt from the charge.
- Analysis suggests the fee changed worker composition rather than reducing the statutory 85,000 annual visa cap.
- Employers are shifting recruitment toward international students already in the United States to avoid high costs.
(UNITED STATES) — John Miano of the Center for Immigration Studies argued on April 20, 2026 that the $100,000 H-1B supplemental fee has not reduced the number of visas available under the annual cap, because the charge falls mainly on some petitions for workers abroad while many cap-subject beneficiaries are already inside the United States when employers file.
Miano said the fee changed who competes for H-1B slots rather than the number of slots themselves. “The $100,000 fee had no effect on that number [the 85,000 quota]. The Trump administration did not hand out or approve more visas. The odds of winning the lottery simply improved this year; the approval rate is up, not the number of approvals.”
His argument centers on the structure of the rule. The annual statutory cap remains 85,000, made up of 65,000 regular cap numbers and 20,000 advanced-degree numbers, and the fee does not apply across all H-1B filings.
President Trump established the supplemental charge in a Presidential Proclamation on September 19, 2025 as a way to deter the displacement of U.S. workers by making some foreign hiring far more expensive. USCIS later issued guidance on October 20, 2025 explaining how the fee applies.
That guidance says new H-1B petitions filed at or after 12:01 a.m. eastern daylight time on September 21, 2025 must include the extra payment if they fall within the covered categories. USCIS wrote: “Under the Proclamation, new H-1B petitions filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, must be accompanied by an additional $100,000 payment as a condition of eligibility. Petitions subject to the $100,000 payment that are filed without evidence of payment or the grant of an exception will be denied.”
USCIS policy limits the fee mainly to new petitions seeking consular notification, port of entry, or pre-flight inspection. It also covers most petitions for workers outside the United States who do not already hold a valid H-1B visa.
Routine domestic change-of-status filings often escape the added charge. That distinction matters because many of the workers who enter the H-1B pool each year are already living in the country in another lawful status, including F-1 student status or Optional Practical Training.
Miano cited 2024 data showing about 54% of cap beneficiaries were already in the United States. In his view, that left a large share of the cap-subject population outside the reach of the $100, 000 H-1B Fee even after the proclamation took effect.
Employers, he argued, responded by shifting recruitment toward the domestic pool rather than abandoning H-1B sponsorship. That shift preserved demand for cap numbers while raising the odds for U.S.-based candidates because fewer overseas cases competed in the same cycle.
The result, under this analysis, is a sharper divide between workers already present in the United States and workers recruited directly from abroad. Students on F-1 status and graduates on OPT or STEM OPT remain far more attractive to employers because sponsoring them often avoids the added $100,000 cost.
Candidates who need consular processing face a different calculation. A company that wants to hire abroad must absorb a six-figure surcharge in covered cases, and that expense can push employers toward U.S. universities and domestic talent pipelines instead.
Small businesses and startups feel that pressure most directly if they cannot find the same specialized skills inside the country. Larger employers with deeper budgets and broader recruiting networks are better positioned to absorb new costs or redirect hiring toward workers already here.
Another layer complicates any claim that the fee alone reshaped this year’s results. The FY 2027 H-1B cycle also operated under a weighted selection process that took effect on February 27, 2026 and favored higher-paid, higher-skilled workers.
USCIS announced on March 31, 2026 that it had received enough registrations to reach the FY 2027 cap. That completed the initial registration selection process under a system that now combines the supplemental fee with wage-based ranking, a mix that can reward employers able to offer stronger salaries while also raising costs for overseas recruitment.
Premium processing became more expensive as well. The fee rose to $2,965 on March 1, 2026, adding another cost increase for employers that want faster adjudication on top of the new entry surcharge in covered petitions.
Miano estimated that “under a hundred” $100,000 fees were paid during the recent cycle. That figure, if borne out over time, would support his argument that employers did not stop using H-1B numbers; they found ways to use them through petition types and worker locations that did not trigger the charge.
That also explains why the cap itself has not budged. Congress set the annual ceiling, and the proclamation did not change it. A filing deterrent aimed at one part of the market can alter the composition of the applicant pool without lowering the total number of available cap numbers.
Hiring patterns now reflect that distinction. Employers that once relied on offshore recruiting face a much steeper path in covered cases, while firms that recruit among international students and other workers already in lawful status can keep participating with fewer added costs.
The policy reaches failed change-of-status cases, too. USCIS guidance says that if an employer files as a domestic change of status but the agency later finds the worker ineligible for that change and approves the petition for consular notification instead, the employer must pay the $100,000 fee before the visa is issued.
That provision leaves some risk even in filings that begin inside the country. Still, the broad pattern described by Miano remains the same: the biggest financial barrier falls on new overseas hiring, not on the common student-to-H-1B route.
Political rhetoric around an H-1B crackdown can obscure that narrower effect. A rule framed as a sweeping restriction can operate in practice as a selective barrier tied to worker location, petition type, and whether the employer needs consular processing.
Indian nationals and other prospective H-1B applicants sit at the center of that divide because many future cap beneficiaries first come through U.S. universities and later seek a change of status. In that channel, the fee often does not apply, leaving those candidates in a stronger position than equally qualified workers who remain abroad.
The current cycle shows how access can shift even when the top-line cap does not. Domestic applicants can see better odds, overseas recruitment can contract sharply, and the annual total can stay fixed at 85,000 all at once.
USCIS laid out the fee policy in this October 20, 2025 alert, and the agency confirmed the FY 2027 cap selection in this March 31, 2026 notice. The premium processing increase appears in the Federal Register notice dated January 12, 2026, part of the same set of cost changes now shaping employer choices.
Miano’s analysis, coming from the Center for Immigration Studies, does not describe a fee with no effect. It describes a fee that changed access to the H-1B system by steering employers toward workers already in the United States and away from first-time hires abroad, while leaving the statutory cap exactly where it stood before the proclamation.
