Trump Administration Sued Over $100k H-1B Visa Fee

The U.S. Chamber of Commerce filed a lawsuit challenging Trump’s Proclamation creating a $100,000 fee for new H-1B visa petitions, arguing that the President does not have the authority to impose the fee.

The lawsuit: The Chamber argues that the new fee is unlawful because it “exceeds the President’s lawful authority” and “blatantly contravenes” the fee system set up by Congress in the Immigration and Nationality Act.

• That law created specific guardrails for visa fees, including that they be based on costs incurred by the government in processing fees.

• The lawsuit alleges that the Trump administration’s justifications for the new entry restriction are “seriously deficient” and rely on “misleading” data.

• The Chamber further argues that any agency action implementing the President’s Proclamation establishing the new $100k fee is unlawfully arbitrary and capricious.

• Finally, the lawsuit claims that the new fee will negatively impact employers’ access to talent and in practice destroy the H-1B program in direct violation of Congress’ intent in creating the program.

Why it matters: The Proclamation now faces two major lawsuits (the first was filed by a coalition of unions and religious groups) that could eventually make it invalid.

What’s next: Both lawsuits ask for injunctive relief, which could temporarily freeze the Proclamation in the meantime until a full decision is reached on its legality.

• However, use and scope of such injunctions was recently limited by the Supreme Court.

• Accordingly, even if a court does grant an injunction in one or both lawsuits, it may not be effective nationwide (i.e., it might only apply to the parties in the case)

• It may be well after the $100k fee goes into effect before the Proclamation is blocked in court (if at all).