A federal court has vacated the Trump Administration’s $100,000 H-1B fee nationwide. In California v. Mullin, the U.S. District Court for Massachusetts on June 8 granted summary judgment for the states that challenged the fee.
The court concluded that the $100,000 fee functioned as a tax rather than as a permissible user fee and that Congress had not delegated taxing authority to the President or the executive branch under the Immigration and Nationality Act. As a result, the policy violated separation-of-powers principles, the court held.
The court also found multiple violations of the Administrative Procedure Act, including failure to follow notice-and-comment rulemaking, exceeding statutory authority, and acting arbitrarily and capriciously.
For the time being, USCIS is not permitted to collect the $100,000 fee from H-1B employers. The government is expected to appeal the decision, and it also may seek a stay pending appeal. If a stay is granted, the government could resume implementing the $100,000 fee while the case is reviewed.
Employers should remain prepared for additional changes to H-1B costs or eligibility rules.
Members of the Center for Workplace Compliance (CWC), our affiliated nonprofit membership association, can read more here.