Can the White House Revive the H-1B Fee? Legal Battle Far From Over

A federal judge in Massachusetts has ruled that the Trump administration's proposed $100,000 fee on new H-1B visa petitions was unlawful, finding that the charge amounted to a tax that could only be imposed by Congress.

In his decision, US District Judge Leo T. Sorokin said the administration had exceeded its authority by introducing the fee through a presidential proclamation. He concluded that the measure was intended to generate revenue rather than cover the administrative costs of processing visa applications. Under the US Constitution, the power to impose taxes rests with Congress, not the executive branch.

The court also found that federal agencies had failed to follow the notice-and-comment procedures required under the Administrative Procedure Act. Judge Sorokin said this procedural failure further weakened the legal basis for the policy.

The lawsuit was filed by a coalition of 20 states led by California Attorney General Rob Bonta. The states argued that the fee would place a significant financial burden on employers, universities and research institutions that rely on highly skilled foreign workers. 

They also warned that the measure could discourage organisations from hiring international talent. Judge Sorokin rejected the government's request to limit the effect of the ruling to the states involved in the case. Instead, he issued a nationwide vacatur, effectively cancelling the policy across the United States.

Legal analysts said the decision reinforces the limits of presidential authority in immigration matters. While the Immigration and Nationality Act gives the President broad powers over immigration policy, the court found that those powers do not extend to imposing taxes. 

The ruling also relied on recent Supreme Court precedent, including the case of Loper Bright Enterprises v. Raimondo, which reduced the level of deference courts give to federal agencies. The ruling has immediate implications for employers preparing applications for the next H-1B visa lottery. 

Unless the decision is suspended or overturned on appeal, organisations will not be required to pay the proposed six-figure fee when filing new petitions. However, the legal dispute is not over. 

The administration is expected to seek an emergency stay of the ruling, and related cases remain before other courts, including the DC Circuit and the Northern District of California. Further decisions could affect the future of the policy in the months ahead.

The controversy has already affected a large number of applicants. According to testimony from Homeland Security Secretary Markwayne Mullin, more than 200,000 applicants had already paid the fee while seeking faster processing of their cases. It remains unclear how those payments will be handled following the court's decision.

For now, the ruling provides relief to employers, universities and foreign professionals who depend on the H-1B programme, while reinforcing the requirement that major changes involving taxation must be approved by Congress.