The struck-down $100,000 H-1B fee returns as a $103,265 filing charge

Price a cap-subject offer for next spring and there are two numbers, not one. The proposed charge is $103,265, payable when the petition is filed and imposed in addition to all other applicable fees ^[1], and it sits on top of the actual or prevailing wage floor employers already owe ^[22]. If the beneficiary is outside the United States and the September 2025 proclamation's $100,000 fee is later ruled lawful, DHS says both would be owed, which is $203,265 for one employee ^[18][2]. That is the number to carry for candidates abroad, because the rule itself contemplates the proclamation fee being revived ^[18].

The rest is a rewrite of purpose. The proclamation's stated aim was to restrict the admission of H-1B holders, and it argued at length that such admissions were harmful ^[5][6]. A federal judge in the District of Massachusetts read the charge as a tax and struck it down as an intrusion on Congress's taxing authority ^[3][4]. The replacement is broader, not narrower: it reaches all cap-subject petitions including those using the advanced degree exemption ^[1], and the asserted purpose is now funding rather than restriction ^[24]. DHS invokes section 286(m) of the Immigration and Nationality Act, which allows fees set to recover the full costs of providing adjudication and naturalization services ^[8][9], and stretches that to immigration work at DHS, the Justice Department, State and Labor ^[7], with immigration courts, ICE and CBP among the recipients ^[10]. Jonathan Wasden of Wasden Law, who said in June that the administration would look for fresh legal grounds ^[16], describes the increase as "wholly detached from any fee analysis" ^[15]. The National Foundation for American Policy's preliminary analysis calls the assumptions behind DHS's no-deterrence claim questionable ^[14].

The exemption structure is where hiring actually gets redirected. Cap-exempt petitioners, meaning universities and nonprofit or governmental research organizations, pay none of it ^[17]. International students are roughly 75% to 80% of full-time graduate students in AI-related fields such as computer and information sciences ^[20]. Set the price at $103,265 a head and the cheapest lawful employer of the people who fill American AI graduate programs becomes the campus lab rather than the company. The on-ramp is being narrowed on the same schedule: DHS finalized a rule in July limiting initial F-1 admission to four years ^[21], a further rule may reset prevailing wage levels ^[23], and another is expected to add H-1B restrictions ^[25].

Vance's endorsement ^[19] matters less as law than as a signal about how much softening to expect between proposal and final rule. Plan on the surcharge being live through 2027, price the second charge as a contingency, and assume the legal question stays open for years rather than months. The alternative is a headcount model whose unit costs are decided by litigation the company is not party to.