BOSTON, May 29 (Reuters) – A federal judge on Friday pressed a lawyer for the government to explain how President Donald Trump had the authority to impose a $100,000 fee on new H-1B visas for highly skilled foreign workers and whether that power had any limits.
U.S. District Judge Leo Sorokin heard arguments during a hearing in Boston in a lawsuit by 20 Democratic state attorneys general challenging a fee Trump announced in September that dramatically raised the cost of obtaining H-1B visas.
The H-1B program offers 65,000 visas annually, with another 20,000 visas for workers with advanced degrees, approved for three to six years. Employers seeking a visa for a foreign worker before Trump’s proclamation typically paid about $2,000 to $5,000 in fees depending on various factors.
The dramatic increase in fees has had its desired effect of discouraging H-1B visa requests. As of February 15, U.S. Citizenship and Immigration Services had received just 85 payments of the $100,000 fee, the government said in a March court filing.
“The effect is to incentivize companies to train up and hire American workers,” Tiberius Davis, a lawyer for the U.S. Department of Justice, told Sorokin.
Davis argued the president had lawfully imposed the fee under his “sweeping” authority under federal immigration law to restrict the entry of certain foreign nationals that would be detrimental to U.S. interests.
“It’s clearly broad language,” Sorokin acknowledged.
But the judge, who was appointed by President Barack Obama, questioned Davis on whether, under his reading of the law, there was any limit to what Trump could do in order to discourage foreigners from coming into America.
“I’m trying to understand the government’s position on the scope,” he said.
He asked whether the government’s legal theory would, for example, permit Trump to impose a $100,000 fee on Americans wanting to marry non-citizens in order for them to enter the country or force a company wanting to bring in a foreign worker to forfeit 10% of its equity to the government.
Davis responded that Trump possibly could take those hypothetical actions and others in order to restrict entry by non-citizens. “It’s a very sweeping power,” he said.
He urged the judge to adopt the reasoning of U.S. District Judge Beryl Howell, who in a related case by the U.S. Chamber of Commerce in Washington, D.C., found that Trump’s broad powers to regulate immigration gave him the authority to impose the fee.
James Richardson, a lawyer for California, countered that what Trump had really done was impose an unconstitutional $100,000 tax on all applications for H-1B visas without any authority from Congress, which did not delegate away its taxing authority through the immigration statute.
He cited the U.S. Supreme Court’s February ruling striking down Trump’s sweeping tariffs that he pursued under a law meant for use in national emergencies, arguing it served as a precedent for Sorokin to deem the new H-1B fees an unlawful tax on companies based on an immigration statute.
“Congress does not delegate a tax authority in ambiguous language,” Richardson said.
The case is State of California et al v. Mullin, U.S. District Court for the District of Massachusetts, No. 25-cv-13829.
For the states: James Richardson of the California Department of Justice
For the United States: Tiberius Davis of the U.S. Department of Justice
Read more:
US judge rejects business group’s challenge to Trump’s $100,000 H-1B visa fee
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