$100,000 H-1B visa fee draws third court challenge

The coalition of states, led by California’s attorney general Rob Bonta, has argued Trump’s September proclamation bypasses required rulemaking procedures and exceeds the authority of the President’s executive branch.  

They said the fee violates federal law which allows immigration authorities to collect only necessary fees to cover the cost of administering visa processes.  

“The Trump administration thinks it can raise costs on a whim, but the law says otherwise,” declared Bonta on December 12. 

“We are going to court to defend California’s residents and their access to the world-class universities, schools, and hospitals that make Californians proud to call this state home,” he said.  

The plaintiffs argued the $100,000 fee required for certain H-1B petitions would put “unnecessary” and “illegal” financial burdens on public employers and providers of vital services, exacerbating labour shortages in key sectors.  

The lawsuit filed last week in a federal court in Boston is the third to challenge Trump’s September 19 proclamation raising the cost of an H-1B visa petition to $100,000 – over 20 times the current cost which ranges between $2,000 and $5,000.  

The H-1B visa enables US employers to temporarily hire international workers in “specialty occupations” from healthcare to computer science and financial analysis. California’s tech industry is particularly reliant on the visa stream.  

A month after the initial proclamation, the administration clarified the controversial fee would not apply to international students and other visa holders changing status in the country – an update that commentators say will cause US companies to lean heavily into hiring US trained international students.  

The White House previously said the fee would combat the “large-scale abuse” of the program which was replacing American workers and undermining the country’s economic and national security.

The Trump Administration thinks it can raise costs on a whim, but the law says otherwise

Rob Bonta, California Attorney General

The states bringing the lawsuit are Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.

Their legal action follows the US Chamber of Commerce bringing a case against the Department of Homeland Security (DHS), and an earlier case, Global Nurse Force v. Trump, challenging the policy on similar grounds to the most recent suit.  

Plaintiffs in the Chamber of Commerce lawsuit are seeking a preliminary injunction that would temporarily ban the fee being imposed while the legality of the proclamation is litigated. A district court hearing is due to be held today (December 19) on the injunction.  

In addition to the fee hike, businesses and prospective employers are keeping a close eye on government plans to overhaul the H-1B system in favour of higher wage earners. 

A change of this sort is likely to have wide-reaching implications for global talent flows to the US, with over half of postgraduate students indicating in a recent survey that they wouldn’t have enrolled at US institutions if access to H-1B was determined by wage levels.  

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