Donald Trump's $100,000 H-1B Fee Sparks Immediate Legal Challenges

President Donald Trump’s new $100,000 fee for H-1B visas flouts clear requirements of federal immigration law and will invite immediate lawsuits, attorneys told Bloomberg.

Trump on Friday announced a $100,000 application fee on the widely-used H-1B visa program, a move that would drastically increase the cost of visas heavily coveted by some of America’s largest companies seeking to bring in skilled workers from abroad. 

The new measure requires US companies to pay $100,000 per year to sponsor each H-1B worker, a sharp increase from previous fees that typically ranged from $1,700 to $4,500.

According to a Bloomberg report, the fee, which takes effect Sunday, could also have devastating effects on businesses that expected to add workers through the specialty occupation visa program this fall.

"It would be imposed as a condition of US entry for foreign workers hired through the H-1B program popular with the tech sector, although it’s unclear what it would mean for visa holders already in the country," the report added.

Attorneys told Bloomberg that, the president’s proclamation relies on an Immigration and Nationality Act provision, but those statutory provisions don’t override other parts of the statute and federal law.

"It’s essentially a ransom note," Shev Dalal-Dheini, director of government relations at the American Immigration Lawyers Association told Bloomberg.

Trump’s Friday proclamation relies on an Immigration and Nationality Act provision that gives the president broad power over the entry of noncitizens—the same legal authority behind the administration’s latest travel ban. But attorneys say those statutory provisions don’t override other parts of the statute and federal law.

“I see this order as being very vulnerable to litigation,” Angelo Paparelli, a partner at immigration firm Vialto.US told Bloomberg. “This is presidential legislation as opposed to congressional legislation. I don’t believe it will sustain court review.”

The Trump administration has focused so far on hitting ambitious goals for immigration enforcement and deportations, rather than foreign labor in the workplace. Critics view the president’s latest move as an existential threat to the cornerstone of the employment-based immigration system.

The H-1B program makes 85,000 visas available each year for workers with at least a college degree filling roles in specialised occupations.

It’s garnered the ire of Trump allies who see the program as undermining American workers, although its supporters include former White House senior adviser and Tesla CEO Elon Musk.

Companies will be forced to decide whether a foreign worker is valuable enough to justify the $100,000 fee, Commerce Secretary Howard Lutnick told reporters Friday.

“Either the person is very valuable to the company and America or they’re going to depart and the company is going to hire an American,” he said.

Congress has set clear requirements for how US businesses can petition for foreign workers, and there’s no basis in statute to impose the fee, Paparelli told Bloomberg.

The Immigration and Nationality Act allows US Citizenship and Immigration Services, the agency that administers the H-1B program, to charge fees to cover the cost of adjudicating immigration benefits. The president’s proclamation specifically relies on Section 212(f) of the INA to levy the new fee.

The US Supreme Court in its 2018 Trump v. Hawaii decision found the president had “broad authority” under that provision to suspend entry into the US of certain classes of immigrants when he deems it detrimental to the national interest. A high court majority in that case upheld the third iteration of the first Trump administration’s travel ban.

Immigration attorneys say the administration is stretching national security justifications to include a steep new H-1B fee.

(With text inputs from Bloomberg)