Legal Challenges to the new H1B Visa Fee

 

Yesterday (September 20, 2025), President Trump issued an executive order (“EO”) requiring

a $100,000 fee for H-1B visas. This EO will take effect at 12:01 a.m. Eastern Daylight Time on September 21, 2025, and will expire after 12 months, unless extended.

Subsequently, the White House press secretary clarified the following points:

  1. This is NOT an annual fee. It’s a one-time fee that applies only to new visas. It does not apply to renewals.
  2. Current H-1B visa holders who are currently outside of the USA will NOT be charged $100,000 to re-enter. H-1B visa holders can leave and re-enter the USA to the same extent as they normally would.

OPT to H1B

When someone transitions from OPT to H1B, it is technically a “change of status” and such a change may not be hit by this new fee.


Grounds for legal challenge

31 U.S.C. 9701 (the “User Fee Statute”) authorizes US government agencies to charge user fees for services and requires fees to be “fair” and based on factors like costs to the government, value to the recipient, and public policy. It’s often read to require fees be roughly proportionate to the cost/value of the service, not general revenue-raisers. Source: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section9701

The Independent Offices Appropriation Act (IOAA), commonly referenced via 31 U.S.C. 9701, is a federal statute authorizing executive agencies to charge user fees for services and benefits they provide to identifiable recipients. OMB Circular A-25 is an official policy directive issued by the Office of Management and Budget (OMB), which is part of the Executive Office of the President in the United States. Titled "User Charges", it establishes guidelines for federal agencies to assess and collect fees for government-provided services, resources, or goods that provide special benefits to identifiable recipients beyond those received by the general public.  Independent Offices Appropriation Act principles as interpreted by OMB Circular No. A-25 (User Charges). OMB A-25 directs agencies that user charges “should be sufficient to recover the full cost” of providing services, reinforcing cost-based, not revenue-raising, fees. Source: https://www.whitehouse.gov/wp-content/uploads/2023/12/OMB-Circular-A-25.pdf

Therefore, any visa fee charged by the US government has to be proportionate to the service being provided and cannot be used to raise additional revenue for the treasury. It is very likely that the new USD 1,00,000 fee for H1B visas will be challenged in courts as being violative of the User Fee Statute and the Independent Offices Appropriation Act.

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