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Trump’s US$100,000 H-1B visa fee is unlawful, US judge rules

White House spokeswoman Taylor Rogers in a statement said the Trump administration is confident the US district judge’s order will be reversed on appeal.

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BOSTON: A federal judge on Monday (Jun 8) struck down a US$100,000 fee US President Donald Trump imposed on new H-1B visas for highly skilled foreign workers, concluding that it constituted an unlawful tax Congress never authorised.

US District Judge Leo Sorokin in Boston issued the ruling in a lawsuit filed by 20 Democratic state attorneys general challenging a fee Trump announced in September that dramatically raised the cost of obtaining H-1B visas.

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

But Sorokin concluded that the fee was not a penalty but a tax that the Republican president lacked any authorisation from Congress to issue and that the US State Department and US Citizenship and Immigration Services could not implement.

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

The judge cited the US Supreme Court’s February ruling striking down Trump’s sweeping tariffs he pursued under a law meant for use in national emergencies. Under the logic of the justices’ decision in that case, Trump similarly had no authority under immigration law to levy a tax, Sorokin said.

White House spokeswoman Taylor Rogers in a statement said the Trump administration is confident Sorokin’s order will be reversed on appeal.

“President Trump has clear legal authority to restrict 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 program offers 65,000 visas annually, with another 20,000 visas for workers with advanced degrees, approved for three to six years. Technology companies in particular rely heavily on workers who receive H-1B visas.

Employers seeking a visa for a foreign worker before Trump’s proclamation typically paid about US$2,000 to US$5,000 in fees depending on various factors. The fee will not apply to visas granted to foreign citizens already in the United States on student visas, who generally make up a large share of new H-1B recipients.

The increase in fees has discouraged H-1B visa requests, according to court filings. As of Feb 15, US Citizenship and Immigration Services had received just 85 payments of the US$100,000 fee, the administration said in a March 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 US$100,000 fee prompted at least three different lawsuits challenging its implementation, including a case by the US Chamber of Commerce, which is appealing a December decision by a judge in Washington DC, who rejected its claims that Trump had no authority to set the fee.

Source: Reuters/fs

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