Trump's $100,000 H-1B visa fee will be struck down, say US attorneys

A coalition of unions, employers and religious groups has taken President Donald Trump's $100,000 H-1B fee to court, calling it an unlawful tax

US President Donald Trump’s decision to impose a $100,000 charge on new H-1B visas for highly skilled foreign workers has sparked a major legal battle. A coalition of unions, employers and religious groups has filed a lawsuit in a federal court in San Francisco, calling the move unconstitutional.

 

Lawsuit questions Trump’s authority H-1B Visa Fee

 

“No President has the authority to create new taxes. The $100,000 H-1B tax will be struck down,” said American immigration attorney Charles Kuck on X.

 

The lawsuit is the first to contest the proclamation Trump issued two weeks ago, in which he announced the additional payment as part of broader efforts to curb immigration to the United States.

 

 

The plaintiffs include the United Auto Workers union, the American Association of University Professors, a nurse recruitment agency and several religious organisations. They argued that Trump’s authority to restrict the entry of certain foreign nationals does not allow him to override the law that created the H-1B programme.

 

White House defends the H-1B new fee

 

White House spokeswoman Abigail Jackson said in a statement that the administration’s actions were lawful and intended to “discourage companies from spamming the system and driving down American wages, while providing certainty to employers who need to bring the best talent from overseas.”

 

The H-1B programme allows US employers to hire foreign professionals in specialised fields, with technology companies being among its largest users. Employers currently pay between $2,000 and $5,000 in fees, depending on company size and other factors.

 

Under Trump’s order, new H-1B recipients cannot enter the country unless their sponsoring employers make the additional $100,000 payment. The rule does not apply to current visa holders or those who submitted applications before September 21.

 

Legal experts call it an unconstitutional tax on H-1B Visa

 

Trump invoked his powers under federal immigration law to justify the order, claiming that large numbers of lower-wage foreign workers had undermined the integrity of the H-1B programme and threatened national security. He said the “large-scale replacement of American workers” discouraged citizens from pursuing careers in science and technology.

 

However, the plaintiffs argue that Trump has no authority to alter the visa system or impose any kind of tax or fee without approval from Congress.

 

“The Proclamation transforms the H-1B programme into one where employers must either ‘pay to play’ or seek a ‘national interest’ exemption, which will be doled out at the discretion of the Secretary of Homeland Security, a system that opens the door to selective enforcement and corruption,” the lawsuit said.

 

“There are several reasons that support this litigation, but the fundamental legal principle in our constitutional republic is that only Congress can create taxes. The $100,000 proclamation is not a fee, it is not a gift, and it is not a fine. It is a tax,” said Kuck.

 

Kuck earlier told Business Standard that visa fees are meant to cover administrative costs, not act as financial barriers.

 

Businesses warn of impact on innovation

 

The lawsuit also claims that agencies including the Department of Homeland Security’s US Citizenship and Immigration Services and the US State Department adopted new policies to enforce Trump’s order without proper rulemaking or public consultation. It warns that such “extortionate fees will stifle innovation.”

 

The H-1B programme offers 65,000 visas annually to employers bringing in temporary foreign workers in specialised fields, with an additional 20,000 reserved for those holding advanced degrees.

 

India remains the biggest beneficiary of the H-1B route, accounting for 71% of all approved visas last year, followed by China with 11.7%, according to government data.