A federal judge on Monday struck down President Donald Trump’s $100,000 fee requirement for employers seeking H-1B visas for highly skilled foreign workers, ruling that the administration exceeded its authority by imposing what amounted to a tax that only Congress can authorize or delegate.
Background of the Ruling
U.S. District Judge Leo Sorokin, an Obama appointee, issued the ruling in a lawsuit filed by 20 states in the U.S. District Court for the District of Massachusetts. The lawsuit, challenging the fee Trump announced in September, was led by California and named Homeland Security Secretary Markwayne Mullin, whose department oversees the H-1B visa program, as a defendant.
As part of the ruling, Sorokin invalidated agency memoranda, guidance documents, website instructions, FAQs, and fee schedules that established and enforced the $100,000 H-1B visa fee. According to the filing, Sorokin ruled that the fee was designed to raise revenue from a lawful program and therefore functioned as a tax rather than a penalty, as the Trump administration had argued.
Constitutional Implications
Under the U.S. Constitution, the power to impose or delegate taxes rests with Congress. The fee also violated the Administrative Procedure Act (APA), which requires agencies to undergo a ‘notice-and-comment’ period to gather public feedback, the judge ruled. Sorokin said the agencies that implemented and enforced the fee failed to adequately explain their reasoning, consider alternative options, or assess the policy’s potential consequences, and lacked a valid emergency or foreign-affairs justification for bypassing the process.
The H-1B program provides 65,000 visas annually, with an additional 20,000 reserved for workers with advanced degrees, typically valid for three to six years. Employers generally paid between $960 and $7,595 in fees prior to Trump’s proclamation, court filings said. Trump introduced the fee last September, arguing the H-1B visa process was fueling the large-scale replacement of American workers and had ‘undermined both our economic and national security.’
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