DHS's proposed H-1B fee comes with a table showing where the money would go. About a third to USCIS, another third to the immigration courts, followed by about $1.05 billion to ICE and $1.21 billion to DOL, including $350 million for the Wage and Hour Division.

Read that alongside the fee itself. A charge this size pushes employers toward every cap-independent pathway available. The same rule would fund a significant expansion of the agencies that examine how those pathways get used.

The immediate question isn't "what are the alternatives." It's "which alternatives hold up."

Consider three structural points:

1. The fee attaches at petition filing, not registration. You would pay only on a hire you actually make, so model cost per cap hire, not per candidate considered.

2. The fee only applies to cap-subject petitions. Qualifying universities, affiliated nonprofits, and nonprofit or governmental research organizations wouldn't owe it. That gap is now six figures wide, which makes cap-exempt and concurrent structures both more attractive and more examined. "Works at a university" is not the same as cap-exempt.

3. O-1 is untouched by this rule. No cap, no lottery, no filing window, no LCA.

But O-1 is not a substitute for H-1B, and we would rather say that plainly than let it go unsaid. The population this fee hits hardest, such as capable engineers a few years out of a master's, in Level I or II roles, is precisely the population that usually cannot document sustained acclaim today. "Just do an O-1A" isn't advice.

Proper advice involves pointing out that O-1A eligibility is partly built, not just discovered. Judging and peer-review appointments, published work, selective memberships, and documented remuneration, are examples of the criteria that a strong candidate can be positioned for over twelve to eighteen months. The employers who will have O-1 options two cap seasons from now should be identifying candidates today.

These O-1A petitions often draw RFEs on the “original contributions of major significance” and “critical role” criteria. The fix isn’t about flowery, purple prose writing to describe the awesomeness of the O-1 candidate. You will need better documents and stronger evidence.

Three things to do before the comment window closes on September 24:

1. Comment. Specific, data-supported comments are the ones that carry weight.

2. Audit your sponsored population against the wage-weighted selection matrix, not last year's assumptions.

3. Start building your strongest O-1 candidates, including the ones who aren't there yet.

If you are weighing a cap-exempt structure, document it as though someone well-funded will read it later. Per that table, someone will be.

***Disclaimer: This post is for general informational purposes and does not constitute legal advice. Every case is fact specific. Please contact our office to discuss how this decision may affect your individual situation.***