Court voids Trump’s $100,000 H-1B visa surcharge, calls it an illegal tax

• A federal judge struck down Trump’s $100,000 H-1B visa fee, ruling it was an unlawful tax requiring congressional approval
• The sudden fee caused chaos last September as thousands of Indian workers rushed back to the U.S. before the policy took effect
• The judge rejected the administration’s argument that broad presidential discretion over immigration included fee-setting authority
• A coalition of 20 Democratic state attorneys general filed the lawsuit, arguing the fee harmed schools, universities, and healthcare facilities
• The White House plans to appeal the ruling, while only 85 payments were received under the policy

When the Trump administration imposed a $100,000 fee on H-1B skilled worker visas last September, the announcement set off immediate chaos. Thousands of H-1B holders scrambled to return to the United States before the new rules took effect, with chaotic scenes unfolding at airports — including aboard an Emirates flight at San Francisco International, where passengers disembarked just before takeoff, fearing they wouldn’t be able to re-enter the country under the new policy. Now a federal judge has ruled that President Trump had no authority to impose the charge, striking it down nationwide and declaring the fee an unlawful tax requiring congressional approval.

U.S. District Judge Leo Sorokin in Boston issued the 42-page decision Monday, siding with a coalition of 20 states that challenged the policy. The fee applied to new H-1B visa petitions for foreign workers outside the United States, a program that allows American employers to hire specialists from abroad for three to six years. The program is capped at 65,000 new visas each year, with another 20,000 available for applicants holding advanced degrees.

“The substance and application of the $100,000 payment reveal that it is a tax, regardless of what the payment is called,” Sorokin wrote. He concluded that the White House could not impose the charge without approval from Congress, rejecting arguments that the executive branch had inherent authority to levy such a fee.

The limits of executive power

Sorokin directly challenged the administration’s position that broad presidential discretion over immigration extended to fee-setting. “While the Executive has broad discretion over the admission and exclusion of aliens, that discretion is not boundless,” he wrote. Without a congressional delegation of taxing authority, he ruled, the president simply had no power to act.

The Department of Homeland Security called the decision “blatant judicial activism,” insisting the fee was meant to protect American workers and prevent abuse of employment-based visa programs.

Previously, employers seeking H-1B visas for foreign workers paid roughly $2,000 to $5,000 in fees depending on various factors. Under Trump’s proclamation, the fee jumped to $100,000 and uptake was minimal: as of February 15, U.S. Citizenship and Immigration Services had received just 85 payments.

What the states argued

The lawsuit was filed in December by a coalition of 20 Democratic state attorneys general. California AG Rob Bonta, who led the effort, warned that the dramatically higher costs would create serious staffing gaps at public schools, state universities, and healthcare facilities that depend on skilled foreign workers. He hailed the ruling as a victory against Trump’s “unlawful and costly $100,000 tax,” calling it an attack on America’s ability to attract high-skilled talent.

New York Attorney General Letitia James, whose office also helped lead the challenge, said the court had “put an end to this administration’s illegal attempt to destroy this critical program and the many jobs it makes possible.”

The White House is planning to appeal. Spokeswoman Taylor Rogers said the administration is confident the order will be reversed, insisting that “President Trump has clear legal authority to restrict entry of any class of aliens he determines is not in America’s best interests.”

Protecting American jobs?

Trump ordered the fee in September, arguing the H-1B program “has been deliberately exploited to replace, rather than supplement, American workers with lower-paid, lower-skilled labor.” The H-1B program, created under the Immigration Act of 1990, allows foreign professionals with degrees in fields such as computer science, engineering, and medical research to live and work in the United States. It has long divided policymakers, with supporters arguing it helps fill critical specialized roles and critics contending it can suppress wages for American workers.

The ruling does not affect a separate challenge filed by the U.S. Chamber of Commerce, which is currently appealing a December decision in Washington, D.C., where a judge rejected its claims that Trump lacked authority to set the fee.

For now, the $100,000 tax is dead. But the debate over H-1B visas — and who gets to decide the rules — is far from settled.
Sources for this article include:

RT.com

ABCNews.com

Reuters.com

CNN.com