VIDEO EXPLAINER | 30 OCTOBER 2026
On 24-25 August 2026 the US Department of Homeland Security proposed a new fee of $103,265 on every H-1B petition filed under the annual cap. It came two and a half months after a federal court in Massachusetts struck down the earlier $100,000 H-1B payment created by Presidential Proclamation 10973 of September 2025, so this time the administration used formal notice-and-comment rulemaking. Indians hold about 71% of approved H-1B petitions, so the cost falls mainly on Indian professionals and Indian IT firms. Alongside it runs the ‘Trump Gold Card’, opened on 10 December 2025, which offers a fast-tracked green card to foreigners who gift $1 million (or $2 million through a company) to the US government.
What happened
In FY 2024 the US approved 399,395 H-1B petitions. India-born beneficiaries got 283,397 of them – 71% – and China was a distant second with 46,680, or 11.7%.
The ‘Trump Gold Card’ was created by Executive Order 14351 of 19 September 2025, the same day as the H-1B proclamation.
The earlier $100,000 H-1B payment came from Presidential Proclamation 10973, ‘Restriction of Entry of Certain Nonimmigrant Workers’, issued on 19 September 2025 and effective from 21 September 2025.
A Gold Card applicant must make an unrestricted gift of $1 million to the US government, or $2 million if a company sponsors them, plus a non-refundable DHS processing fee of $15,000.
A ‘Platinum Card’ at $5 million, allowing up to 270 days a year in the US, has been floated but was not operational as of the reports.
The US began accepting Gold Card applications on 10 December 2025 through the website trumpcard.gov.
A separate case, Chamber of Commerce of the US v. DHS in the District of Columbia, went the government’s way, with the court rejecting the constitutional and APA challenges; it too is on appeal.
On 8 June 2026, Judge Leo T. Sorokin of the US District Court for the District of Massachusetts vacated the policy implementing that $100,000 payment, in State of California et al. v. Mullin et al. (Civil No. 25-13829-LTS).
Petitions eligible for the US master’s-degree (advanced degree) exemption would also pay the fee, but cap-exempt employers – universities, their affiliated non-profits and non-profit or government research bodies – would not.
Background and the rules behind it
The H-1B specialty-occupation category was created by the US Immigration Act of 1990; the H-1A nurse category had been created separately a year earlier by the Immigration Nursing Relief Act of 1989 (Public Law 101-238), and it expired on 1 September 1995.
Universities, their affiliated non-profits, non-profit research organisations and government research organisations are cap-exempt H-1B employers.
USCIS (US Citizenship and Immigration Services) took over federal immigration service functions on 1 March 2003 and sits inside the Department of Homeland Security.
DHS and USCIS were created by the Homeland Security Act of 2002; USCIS replaced the Immigration and Naturalization Service (INS).
The EB-5 immigrant investor programme was created by the US Congress in 1990 to bring in capital and create jobs.
The EB-5 Reform and Integrity Act of 2022 was signed on 15 March 2022; for petitions filed on or after that date the minimum investment is $1,050,000, or $800,000 in a targeted employment area or infrastructure project.
The US Administrative Procedure Act (APA), 1946, requires federal agencies to publish a proposed rule and take public comments before making it final; rules that skip this or are ‘arbitrary and capricious’ can be struck down.
Key terms
- Specialty occupation: A job that needs at least a bachelor’s degree in a specific field; the test for an H-1B visa.
- Cap-subject petition: An H-1B petition counted against the yearly limit of 85,000; petitions by universities and research bodies are outside it.
- Notice-and-comment rulemaking: The legal process by which a US agency publishes a draft rule, invites public comments and then issues a final rule.
- Vacatur: A court order wiping out an agency action, so it has no legal effect for anyone.
- National Interest Waiver: An EB-2 route where the usual job offer and labour certification are waived because the applicant’s work benefits the US.
- Golden visa: Residence granted in return for a large investment or payment; the Gold Card is the US version.
Constitutional / Legal / Institutional framework
- US Constitution, Article I, Section 8 (Taxing Clause): Only Congress can lay and collect taxes. This is why the court called the $100,000 H-1B payment an unconstitutional tax.
- Administrative Procedure Act, 1946 (US): Agencies must follow notice-and-comment procedure and act within their statutory authority; a court may vacate rules that do not.
- Proclamation 10973 (19 Sep 2025): Restricted entry of certain H-1B workers and demanded a $100,000 payment for covered new petitions; its implementing policy was vacated on 8 June 2026.
- Executive Order 14351 (19 Sep 2025): Creates the Gold Card: a gift of $1 mn (or $2 mn corporate) to the US government is treated as evidence supporting an EB-1A or EB-2 NIW immigrant petition.
- EB-5 Reform and Integrity Act, 2022 (US): Reauthorised the Regional Center programme and set the investment at $1,050,000, or $800,000 in a targeted employment area.
CLAT angle
- Separation of powers passage: an executive order cannot levy a tax because taxing is a legislative power. A CLAT Legal Reasoning principle can mirror this with India’s Article 265 – no tax except by authority of law.
- Numbers question: 85,000 cap = 65,000 + 20,000; the proposed fee is $103,265; India’s share of approvals is 71%.
- Passage on the Indian diaspora and IT services – why a US visa fee is an Indian economic story.
- Distinguish the two routes: H-1B is a temporary work visa; the Gold Card and EB-5 are permanent-residence routes bought with money.
- Process question: a proposed rule is not law until the comment period ends and a final rule is issued – parallels a Bill not being an Act.
Key facts
| Fact | Detail |
|---|---|
| 1990 | US Immigration Act creates the H-1B category and the EB-5 programme |
| 2003-03-01 | USCIS begins work under DHS |
| 2022-03-15 | EB-5 Reform and Integrity Act raises investment to $1,050,000 / $800,000 |
| 2025-09-19 | Proclamation 10973 ($100,000 H-1B payment) and Executive Order 14351 (Gold Card) issued |
| 2025-12-10 | Gold Card applications open at trumpcard.gov |
| 2026-04-23 | Only one Gold Card approved so far, says Commerce Secretary Lutnick |
| 2026-06-08 | District of Massachusetts vacates the $100,000 H-1B payment |
| 2026-07-24 | First Circuit refuses to stay that order |
Mnemonic / memory hook
Remember the trap.
(1) The $103,265 fee is a PROPOSAL, not law – never write that the US ‘has imposed’ it. (2) It is different from the $100,000 payment under Proclamation 10973, which a court vacated in June 2026. Do not merge the two. (3) The Gold Card gives permanent residence (a green card), which can later lead to citizenship; it is not itself citizenship.
Sources
Primary documents and reporting listed in the fact base: uscis.gov, btlaw.com, immpolicytracking.org, cnn.com, visalawyerblog.com, govinfo.gov, archives.gov. Lead image: no ASSET-MANIFEST.json.
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