US Tightens Grip on Work Visas with Proposed $100K H-1B Fee
Immigration attorneys flag rising RFEs, confusion over eligibility, and potential lawsuits as Indian professionals face the brunt of new visa rules
U.S, Nov 10 : The United States Citizenship and Immigration Services (USCIS) has started issuing Requests for Evidence (RFEs) demanding payment of the $100,000 H-1B fee, sparking confusion and legal concern among immigration experts and employers.
The move follows a presidential proclamation in September that introduced a $100,000 fee for new H-1B petitions filed by candidates outside the US or requiring consular processing after September 21. RFEs are typically issued when immigration officers find insufficient documentation to approve a petition.
However, experts told The Economic Times that RFEs are now being sent even in cases where the new fee doesn’t apply, reflecting uncertainty about the rule’s scope. This ambiguity could result in an increase in lawsuits against the federal government. Indians who account for nearly 70% of all H-1B visa holders are likely to be the most affected.
Gnanamookan Senthurjothi, founder of The Visa Code, said RFEs have even been issued in cases involving H-1B recapture time a provision that allows workers to reclaim unused portions of their six-year H-1B period by adding days spent outside the US.
Legal grey areas
Attorneys point to ambiguities in the proclamation’s language, where the terms “visa” and “status” were used interchangeably despite having distinct legal meanings. Adam Rosen, managing attorney at the Murthy Law Firm in Maryland, noted that while the President can set entry conditions under Section 212(f) of the Immigration and Nationality Act, the proclamation extends beyond that by imposing a fee on petitioners rather than beneficiaries.
Rosen advised petitioners to first respond to RFEs by citing USCIS’s own clarification that narrows the rule’s applicability. If denied, employers can challenge the decision in federal court, he said. Several lawsuits — including those by the US Chamber of Commerce and H-1B advocacy groups are already pending in court.
Industry impact
Xiao Wang, CEO of Boundless Immigration, said many RFEs were likely issued during a transition period before USCIS released its formal guidance on October 20. He added that employers should not assume this indicates a permanent broadening of who must pay the $100,000 fee.
Kate Kalmykov, co-chair of Greenberg Traurig’s immigration practice, warned that litigation is costly and time consuming, pushing many companies to pause new overseas sponsorships or relocate talent abroad to avoid the hefty fee.
“The uncertainty is forcing firms to rethink hiring models,” Kalmykov said. “Some are now focusing on upskilling domestic workers and relying on immigration only for essential roles.”
Wang added that the ongoing policy volatility is encouraging a shift toward self-reliance. “Employers and professionals are exploring alternatives to the H-1B lottery system, building resilience against abrupt regulatory shifts,” he said.
