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The U.S. Chamber of Commerce recently filed a lawsuit against the Trump administration’s Presidential Proclamation which updated H-1B visa requirements. The October 16 legal action by the largest business organization in the country follows an October 3 lawsuit, filed by a coalition of employers, religious groups, and unions, including the American Association of University Professors. New information released October 21 clarifies that the $100,000 fee would only apply to new applicants who are living abroad.
Published on September 19, the proclamation established greater barriers to entry for higher education employers that seek to hire skilled international workers under the H-1B visa. It states a $100,000 up-front payment must be made to the U.S. government by employers seeking to hire nonimmigrant workers under H-1B petitions filed on or after September 21, effective through September 21, 2026 (unless extended). The $100,000 one-time sponsorship payment is in addition to the existing $1,500 to $5,000 administrative fee for each visa and is a new hurdle for research universities seeking to employ these highly skilled nonimmigrant workers.
The recent litigation alleges the policy could cause “catastrophic setbacks” to research in the United States. Larger research-intensive institutions like Stanford University, which on average sponsors around 270 new H-1B visas per year, would be subject to an extra $27 million in fees. This means that many institutions would be required to put their research dollars to use for hiring rather than backing meaningful, life-changing research and innovation. There is even speculation that the H-1B visa program’s cap on how many sponsorships a company may have could apply to exempt institutions like colleges and universities adding another hurdle to the mix of locating, hiring, and retaining such skilled labor at their given institution. Many colleges and universities that are competitive because of the workforce they employ, especially research institutions, will have to adapt in order to remain competitive.
The good news: Those who have already been granted an H-1B visa, are up for renewal, or applied for a visa before September 21 will not be required to resubmit their application and their employer will not have to make the $100,000 payment. As far as we know, the three-to-six-year term (depending on extension) of the visa will remain intact.
For now, the advice of many is to sit tight and take a deep breath while the litigation is pending. The plaintiffs have requested an immediate injunction to halt enforcement of the fee which, if granted, means that employers could file new H-1B petitions without paying the $100,000 fee. In the meantime, institutions should review their programs and determine who may be affected by this change, whether it is among the faculty or the student population.
Steptoe & Johnson’s Higher Education team will continue to monitor the situation for updates.
