US Judge Strikes Down Trump’s $100,000 H-1B Visa Fee as Unlawful

A federal judge on Monday struck down a $100,000 fee imposed by US President Donald Trump on new H-1B visas for highly skilled foreign workers, ruling that it amounted to an unlawful tax that Congress had never authorised.

US District Judge Leo Sorokin in Boston issued the ruling in a lawsuit filed by 20 Democratic state attorneys general challenging the fee, which Trump announced in September and which dramatically increased the cost of obtaining H-1B visas. The programme is heavily relied upon by technology companies and other employers seeking to recruit foreign talent.

The administration argued that the fee was a lawful monetary penalty that the president was authorised to impose under federal immigration law, which grants him the power to restrict the entry of certain foreign nationals when he considers their admission “detrimental to the interests of the United States”.

However, Sorokin concluded that the fee was not a penalty but a tax, which the Republican president lacked congressional authority to impose. He further ruled that the US State Department and US Citizenship and Immigration Services (USCIS) could not implement the measure.

“Here, the substance and application of the $100,000 payment reveal that it is a tax, regardless of what the payment is called,” wrote Sorokin, who was appointed by former Democratic President Barack Obama.

The judge cited a US Supreme Court ruling from February that struck down Trump’s sweeping tariffs, which had been introduced under a law intended for use during national emergencies. Applying the same reasoning, Sorokin said Trump similarly lacked authority under immigration law to levy a tax.

White House spokeswoman Taylor Rogers said in a statement that the Trump administration was confident the ruling would be overturned on appeal.

“President Trump has clear legal authority to restrict the entry of any class of aliens he determines is not in America’s best interests, and that is exactly what he did,” she said.

The H-1B programme provides 65,000 visas annually, with an additional 20,000 visas available for workers holding advanced degrees. These visas are typically granted for periods ranging from three to six years. Before Trump’s proclamation, employers seeking H-1B visas generally paid between $2,000 and $5,000 in fees, depending on various factors.

In announcing the new fee, Trump said the H-1B programme “has been deliberately exploited to replace, rather than supplement, American workers with lower-paid, lower-skilled labour”.

The fee does not apply to visas granted to foreign nationals already in the United States on student visas, a group that typically accounts for a significant proportion of new H-1B recipients.

Few employers have paid the fee since its introduction. As of 15 February, USCIS had received only 85 payments of the $100,000 charge, according to an agency official in a March court filing.

The Trump administration has also ordered enhanced vetting of H-1B applicants and proposed a new visa selection process that would favour higher-skilled and better-paid workers.

The fee has prompted at least three separate lawsuits challenging its implementation, including a case brought by the US Chamber of Commerce. The organisation is appealing a December ruling by a judge in Washington, DC, who rejected its argument that Trump lacked authority to impose the fee.

California Attorney General Rob Bonta, a Democrat who led the multi-state coalition that brought the case before Sorokin, welcomed the ruling and described the measure as an “unlawful and costly $100,000 tax”.

“This tax was an attack on America’s ability to attract and retain the high-skilled talent that strengthens our economy and helps us meet critical workforce needs,” he said.

 

For any enquiries or information, contact ask@tlr.ae or call us on +971 52 644 3004. Follow The Law Reporters on WhatsApp Channels.