Legal experts anticipate a surge of urgent lawsuits aimed at preventing the new H-1B fee from taking effect. The courts will need to decide whether the US president has the power, under Section 212(f) of the Immigration and Nationality Act (INA), which allows suspension of entry for non-citizens, to enforce such financial requirements.
The US, through President Trump’s executive order, has increased the H-1B visa fee to $1,00,000 from around $1,000 — a move that has caused significant concern among tech companies. Visa experts say Indians would be the worst affected, as they comprise the largest group of H-1B visa-holders.
“The President relies on INA 212(f), which allows suspending entry of noncitizens. In Trump v. Hawaii (2018), the Supreme Court upheld a broad travel ban. But that was an outright ban, not a financial condition,” Abhinav Tripathi, immigration attorney and founder of Protego Law Group told Times of India. “Conditioning entry on a six-figure payment looks more like taxation, which only Congress can impose. Further, Congress has already set the H-1B fee structure. A presidential proclamation cannot override that with a new payment scheme.”
ALSO READ: IT professional hit hardest by Trump's H-1B move: Cost to company too high for sponsoring (most) staff
Tripathi explained that while the proclamation itself is not subject to the Administrative Procedure Act (APA), the agencies that implement it are. “If Department of Homeland Security (DHS) or Department of State (DOS) begins enforcing the $1,00,000 payment condition immediately, without going through notice and comment rulemaking, those enforcement actions are vulnerable under the APA — which calls for an appropriate procedure (such as public notice and inviting comments) to be followed prior to implementation,” he added.
According to immigration attorney Cyrus D Mehta, despite the Supreme Court upholding a travel ban earlier, this proclamation could be successfully challenged. “The proclamation banning H-1B workers is so blatantly unlawful that it rewrites parts of the INA,” he said, adding, “It does not carve out exceptions for those who already have been issued H-1B visas or who were here in the US when the proclamation took effect. Prior bans clearly had exceptions for those who were present in the US on the effective date and then left. I also think H-1B visa holders with prior residence in the US going back over a decade (especially India-born H-1B holders caught in the green card backlogs) would have a strong due process claim if they were briefly outside the US and could not get back by the cut-off deadline under the new proclamation.”
ALSO READ: Entry restrictions, extension exemptions, and next steps for H-1B holders: An immigration lawyer decodes
Immigration attorney Ashwin Sharma described the measure as “executive taxation without Congress approval,” predicting swift lawsuits. “Section 212(f) of INA allows suspending entry, but it does not authorise a $1,00,000 charge or rewriting USCIS and DOS fee schedules by executive proclamation alone. This fee is unlawful on its face and appears... calibrated to deliver a chilling effect on employers, and campuses,” he said. Doug Rand, a former DHS official, said the move was political theatre: “This isn’t real policy — it’s fan service for immigration restrictionists. Trump gets his headlines and inflicts a jolt of panic, and doesn’t care whether this survives first contact with the courts.”
The American Immigration Lawyers Association (AILA) called the proclamation a dangerous overreach. Jeff Joseph, its president, said: “America’s need for talented foreign professionals to fill critical workforce gaps, keep the economy moving forward, and create new jobs has not changed under the Trump administration. But overnight, this administration has turned the high-skilled H-1B programme into a ‘pay-toplay’ system and has effectively shut out teachers, non-profits, researchers, rural doctors, clergy, and other professionals who simply can’t afford Trump’s elitist revisioning of the H-1B programme. Rather than working with Congress to strengthen and revitalise this critical high-skilled worker programme, the president has overstepped his executive authority on a proposal that will undermine innovation and prevent businesses both large and small from accessing the talent they need.”
Whether the $1,00,000 fee survives court scrutiny or collapses under immediate injunctions, attorneys agree on one thing: the proclamation has already sown uncertainty among employers, universities, and foreign skilled professionals.
(With inputs from Times of India's Lubna Kably)
The US, through President Trump’s executive order, has increased the H-1B visa fee to $1,00,000 from around $1,000 — a move that has caused significant concern among tech companies. Visa experts say Indians would be the worst affected, as they comprise the largest group of H-1B visa-holders.
“The President relies on INA 212(f), which allows suspending entry of noncitizens. In Trump v. Hawaii (2018), the Supreme Court upheld a broad travel ban. But that was an outright ban, not a financial condition,” Abhinav Tripathi, immigration attorney and founder of Protego Law Group told Times of India. “Conditioning entry on a six-figure payment looks more like taxation, which only Congress can impose. Further, Congress has already set the H-1B fee structure. A presidential proclamation cannot override that with a new payment scheme.”
ALSO READ: IT professional hit hardest by Trump's H-1B move: Cost to company too high for sponsoring (most) staff
Tripathi explained that while the proclamation itself is not subject to the Administrative Procedure Act (APA), the agencies that implement it are. “If Department of Homeland Security (DHS) or Department of State (DOS) begins enforcing the $1,00,000 payment condition immediately, without going through notice and comment rulemaking, those enforcement actions are vulnerable under the APA — which calls for an appropriate procedure (such as public notice and inviting comments) to be followed prior to implementation,” he added.
According to immigration attorney Cyrus D Mehta, despite the Supreme Court upholding a travel ban earlier, this proclamation could be successfully challenged. “The proclamation banning H-1B workers is so blatantly unlawful that it rewrites parts of the INA,” he said, adding, “It does not carve out exceptions for those who already have been issued H-1B visas or who were here in the US when the proclamation took effect. Prior bans clearly had exceptions for those who were present in the US on the effective date and then left. I also think H-1B visa holders with prior residence in the US going back over a decade (especially India-born H-1B holders caught in the green card backlogs) would have a strong due process claim if they were briefly outside the US and could not get back by the cut-off deadline under the new proclamation.”
ALSO READ: Entry restrictions, extension exemptions, and next steps for H-1B holders: An immigration lawyer decodes
Immigration attorney Ashwin Sharma described the measure as “executive taxation without Congress approval,” predicting swift lawsuits. “Section 212(f) of INA allows suspending entry, but it does not authorise a $1,00,000 charge or rewriting USCIS and DOS fee schedules by executive proclamation alone. This fee is unlawful on its face and appears... calibrated to deliver a chilling effect on employers, and campuses,” he said. Doug Rand, a former DHS official, said the move was political theatre: “This isn’t real policy — it’s fan service for immigration restrictionists. Trump gets his headlines and inflicts a jolt of panic, and doesn’t care whether this survives first contact with the courts.”
The American Immigration Lawyers Association (AILA) called the proclamation a dangerous overreach. Jeff Joseph, its president, said: “America’s need for talented foreign professionals to fill critical workforce gaps, keep the economy moving forward, and create new jobs has not changed under the Trump administration. But overnight, this administration has turned the high-skilled H-1B programme into a ‘pay-toplay’ system and has effectively shut out teachers, non-profits, researchers, rural doctors, clergy, and other professionals who simply can’t afford Trump’s elitist revisioning of the H-1B programme. Rather than working with Congress to strengthen and revitalise this critical high-skilled worker programme, the president has overstepped his executive authority on a proposal that will undermine innovation and prevent businesses both large and small from accessing the talent they need.”
Whether the $1,00,000 fee survives court scrutiny or collapses under immediate injunctions, attorneys agree on one thing: the proclamation has already sown uncertainty among employers, universities, and foreign skilled professionals.
(With inputs from Times of India's Lubna Kably)
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