(UNITED STATES) — The Trump administration kept in place a $100,000 surcharge tied to certain new H-1B visa petitions as of Saturday, even as government lawyers disclosed in court that only a small slice of U.S. employers has paid it since it took effect.
Justice Department attorneys told a federal court that only approximately 70 companies have made the payment since the policy’s rollout in September 2025, a figure first reported by Bloomberg Law in February 2026. The limited uptake has become a central datapoint in a fast-moving legal fight that could still modify, uphold, or strike down the measure.
Business groups and recruiters challenging the fee have argued it functions as a “backdoor ban” on hiring skilled workers abroad. Government lawyers countered in a recent hearing that the small number of payments undercuts claims that it operates as a broad “tax” on employers.
The fee traces back to a presidential proclamation titled “Restriction on Entry of Certain Nonimmigrant Workers,” signed on September 19, 2025, that created a one-time “payment to remove restriction” as a condition of entry for certain H-1B workers. The proclamation set an effective time of 12:01 a.m. EDT, September 21, 2025.
USCIS later issued formal implementation guidance to spell out when the payment applies and how filings must document it. “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 News Alert, Oct. 20, 2025.
Karoline Leavitt, White House press secretary, framed the administration’s intent a day after the proclamation was signed. “This applies to new visas, not renewals, and not current visa holders. It is an important, initial, and incremental step to reform the H-1B program to curb abuses and protect American workers,” Leavitt said on September 20, 2025.
The limited employer participation so far has also reflected the narrow way the policy targets filings. The surcharge primarily applies to “new” H-1B petitions for beneficiaries outside the United States who do not already hold a valid H-1B visa, and to petitions requesting consular notification, port of entry notification, or pre-flight inspection.
Many common H-1B scenarios remain outside the surcharge’s scope, including transfers for workers already in valid H-1B status within the U.S. Employers also generally avoid the payment for change of status cases such as F-1 OPT to H-1B, and for renewals or extensions for the same employer.
Court filings and attorney accounts have pointed to several reasons many employers have held back, even when they recruit globally. Ongoing litigation has injected uncertainty into budgeting and timing, pushing some companies to delay affected filings as they watch for court direction heading into seasonal H-1B planning.
Cost has been a second brake, especially for small and mid-size employers that must weigh the surcharge on top of standard H-1B filing and legal costs. The result has been triage: some employers reassess whether to sponsor a candidate abroad, while others focus recruitment on workers already in the U.S. whose cases typically fall under change of status or portability rules.
The surcharge also changes the calculus between overseas recruiting and hiring candidates who can file from inside the country. The proclamation’s structure links the payment to eligibility for certain new petitions, creating a financial dividing line between cases that require consular processing steps and those that do not.
Government messaging has described the surcharge as a targeted condition aimed at deterring abuse and prioritizing U.S. workers. In litigation, Justice Department attorneys argued that the limited number of payments supports the view that the measure is discretionary and narrowly applied rather than a sweeping levy.
Employers that do proceed with affected cases face a specific operational requirement: they must pay through Pay.gov using the form titled “H-1B VISA PAYMENT TO REMOVE RESTRICTION.” Proof of payment must accompany the Form I-129 petition when it is submitted.
USCIS guidance has warned that petitions in scope that arrive without evidence of payment or an exception will be denied. The policy is structured as a one-time condition for certain new petitions rather than an ongoing charge on all H-1B filings.
The legal battle over the surcharge has unfolded quickly and now sits at a moment employers describe as hard to plan around. The principal challenge has been led by the U.S. Chamber of Commerce in Chamber of Commerce v. DHS, as the dispute moves through federal courts ahead of the next hiring cycle.
A D.C. District Court judge upheld the fee on December 23, 2025, ruling that the President had broad authority under Section 212(f) of the INA, as described in the case filings. Plaintiffs appealed, keeping the measure under scrutiny as employers weigh whether to sponsor workers who would fall under the proclamation’s overseas-focused scope.
Arguments over executive authority have sharpened since a separate Supreme Court decision earlier this month. On February 20, 2026, the U.S. Supreme Court ruling in Learning Resources, Inc. v. Trump overturned global tariffs, concluding that the executive cannot exercise “taxing powers” without explicit congressional authority, challengers have argued in pressing their case against the H-1B surcharge.
The administration has resisted the “tax” label in court, arguing instead that the payment functions as a condition tied to eligibility for certain new H-1B petitions. Plaintiffs have pointed to the surcharge’s size and its impact on overseas recruitment as evidence of a broader barrier.
USCIS’s October 2025 guidance laid out the policy’s contours at a time when many employers were already mapping out staffing strategies. The guidance clarified that the payment requirement attaches to new H-1B petitions “filed at or after” the proclamation’s effective moment, and emphasized the documentation that must accompany Form I-129 filings.
The effect on applicants has diverged sharply depending on where they are located and how they plan to obtain H-1B status. International professionals already in the United States seeking a change of status, including many F-1 students moving from OPT, generally do not face the surcharge under the stated exemptions.
Overseas candidates have faced a different set of decisions, because the surcharge targets new petitions tied to consular notification and related entry processes. Employers have described delays in overseas recruitment and increased financial planning burdens as they decide whether to open a role to a candidate abroad.
Bloomberg Law’s account of federal court disclosures has also put a spotlight on how many employers have actually crossed the threshold. Government attorneys acknowledged that fewer than 100 employers have paid the six-figure charge since the policy took effect, a level of participation that both sides now cite to support opposing narratives about intent and impact.
The broader implications for skilled immigration policy hinge on whether the surcharge survives court review and becomes a lasting feature of H-1B hiring economics. If it remains in force, it could tilt recruitment toward candidates already inside the United States and away from direct hiring of workers located abroad.
If courts ultimately strike down the surcharge, employers may revert to more typical overseas recruiting patterns without the added payment, as the litigation record has framed it. The draft record also describes national interest exceptions as rare, leaving most affected employers to either pay or shift strategy.
Employers now face a tight calendar as they watch for an appellate development in the D.C. Circuit before the FY 2027 H-1B lottery registration begins on March 4, 2026. The next court move could shape 2026–2027 hiring plans, even as participation in the surcharge remains low relative to the attention it has generated.
More information on the broader H-1B framework appears on the USCIS H-1B specialty occupations page, while the agency’s presidential proclamation implementation guidance and the Pay.gov fee payment portal set out the documentation steps employers must satisfy if they file an affected petition.
Few Firms Pay $100,000 H-1B Visa Fee as Legal Fight Over Proclamation Grows
The $100,000 H-1B surcharge for new overseas petitions remains a point of intense legal and economic contention. With only 70 companies paying the fee so far, the policy’s impact is narrow but significant for international recruitment. As the U.S. Chamber of Commerce challenges the administration’s authority, the upcoming FY 2027 lottery registration will likely force a resolution or further clarify the financial landscape for skilled immigration.
