Judge Strikes Down Trump’s $100K H-1B Visa Fee
“The President has clear legal authority to restrict entry of any class of aliens he determines is not in America’s best interests, and that is what he did.”
A federal judge in Massachusetts on Monday struck down the Trump administration’s $100,000 H-1B visa fee, ruling that the charge was a tax Congress never authorized.
Trump announced the fee by presidential proclamation in September 2025, arguing that the H-1B program had displaced American workers and that employers relying on foreign labor should pay more to do it. The administration said the fee was a restriction on entry, not a tax, and that the president had full authority to impose it.
Twenty Democratic state attorneys general, led by California, filed suit in December to block the fee, arguing it was an unconstitutional tax imposed without any act of Congress.
U.S. District Judge Leo T. Sorokin agreed.
In a 42-page opinion, Sorokin concluded that the $100,000 charge was a tax regardless of what the administration called it, and that only Congress has the power to levy taxes. He also ordered U.S. Citizenship and Immigration Services (USCIS) and the State Department not to collect the fee.
“Here, the substance and application of the $100,000 payment reveal that it is a tax, regardless of what the payment is called.”
The administration pointed to the Immigration and Nationality Act, which gives the president authority to restrict entry of foreign nationals whose admission he deems “detrimental to the interests of the United States.” The government argued that the fee was a restriction on entry rather than a revenue measure.
Sorokin rejected that argument. He found the administration had offered no definition of a “regulatory payment,” cited no statutes or case law using the term, and given no explanation for why it differed from a tax.
“Defendants offer no definition for what constitutes ‘a regulatory payment,’ cite no cases or statutes employing the term, and advance no reasoned argument explaining how this term encompasses something different than a tax or a penalty.”
Sorokin also pointed to the Supreme Court’s February decision in Learning Resources v. Trump, which struck down Trump’s emergency tariffs on the ground that the president had no authority to impose what amounted to a tax. Sorokin concluded that the same reasoning applied: if Congress had not given the president taxing power through trade law, it had not done so through immigration law either.
White House spokeswoman Taylor Rogers said the administration would appeal and expected to win.
“President Trump has clear legal authority to restrict entry of any class of aliens he determines is not in America’s best interests, and that is exactly what he did.”
Before Trump’s proclamation, employers typically paid between $2,000 and $5,000 to sponsor an H-1B worker. The new fee increased the cost by as much as fiftyfold. By mid-February, federal filings showed only 85 employers had paid it.
The H-1B program provides 65,000 visas annually, with an additional 20,000 for workers holding advanced degrees. Technology companies, universities, hospitals, and financial firms are among the largest users of the program.
Sorokin was nominated by President Barack Obama in December 2013 and confirmed by the Senate in June 2014. He previously blocked Trump’s executive order ending birthright citizenship, dismissed a Justice Department lawsuit challenging Boston’s sanctuary city policies, and threw out a separate administration lawsuit seeking Massachusetts voter-roll data.
The administration is expected to appeal to the First Circuit. The U.S. Chamber of Commerce is pursuing a separate appeal after a federal judge in Washington declined to block the fee last year.
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Fine, then exercise executive discretion and don’t allow anyone in under those type of Visa.
Yep. Then blame the outcome on that Judge and the folks who brought the suit.
‘Golly, we tried to find a middle ground on use of H1B visa to reform the program back to its original basis; allowing employer to bring in very highly skilled worker to temporarily perform a job that they couldn’t find a US Citizen qualified to perform. Unfortunately the open borders usual suspects found a rogue Judge to block it. Effective immediately the H1B program is paused until further notice as the Administration formulates a new plan to protect US Citizen workers from predatory hiring practices by a few bad actor employers gaming the old system.’
The downside is that those companies simply move overseas, taking American jobs with them.
Cool. Impose tariffs sufficient to offset the reduced labor costs and block listing on US run stock exchanges which offshore manufacturing/production greater than 10% of total output. Not will the US Navy protect any transit of that company’s product, reserving maritime protection to the transport of US domestic manufacturing and (if I had my way) only on US Flagged and US crewed vessels.
Companies are quite free to move elsewhere and should remain free to do so but they have no claim to retain the benefits of being an ‘American’ company if they do so.
Tariffs are taxes too, and only Congress can impose them (or explicitly authorize the president to do so).
And your point is …what exactly? In my post I made zero reference to which political branch would impose the tariff so whether it is done by Congress or the Executive is immaterial. Further Congress has already delegated all sorts of tariff authority to the Executive to use.at his discretion. Then there’s the foreign policy angle which the Judiciary is reluctant to intrude. Beyond tariff authority is the Defense Production Act which might be used to compel domestic US production. Finally the Oceans are …large…be a real shame if ‘pirates’ suddenly began capturing/sinking vessels containing products made by these ‘global citizen’ corporations who abandoned US Citizen workers and those vessels were never seen again.
Congress *delegated* most of its tariff powers to the Executive (mostly due to the fact that tariff policies have to be flexible to work worth a hoot, and Congress is the model of inflexibility) Of course, Congress made a bit of hash out of that delegation and really needs to produce a clean, working, sensible guideline for the Executive to follow. Which will happen when pigs fly, I suppose.
which Congress did, that’s why Roberts was wrong on the tariff decision: IMPEACH JOHN ROBERTS!
No, it did not. There is not one word in that act that authorizes the president to impose tariffs.
If it’s not a “regulatory” fee, then how is a the Federal Government supposed to recover its costs of processing H-1B visas? According this liberal judge, Trump must go to Congress to raise taxes to cover immigration related expenses. Yeah, right, that’ll work just fine.
Why should the Democrats judge shop anywhere else but in Massachusetts. Going forward file all lawfare at the doorstep of U.S. District Judge Leo T. Sorokin in Boston who makes DC’s Boasberg look like a minor leaguer?
It’s time to start slow walking all H-1b visa applications and tell the blue-state Democrat AGs, fine have it your way, and the US Chamber of Commerce to pound salt
The government can impose a fee sufficient to cover its costs. This is clearly not that. This is way more than the cost of administration, and can be expected to raise significant revenue; therefore it’s a tax.
One has to immediately then ask: What are costs? In this case, a H1B visa holder imposes both a processing cost and an economic cost of displacing a US citizen with equal or greater skills. That cost then trickles up the various governmental programs such as Social Security, Unemployment, Taxable Income, and economic growth. In short, the H1B visa holder may be of benefit to the hiring company, but impose a far greater cost to the rest of the US economy. (Which in the judge’s defense is probably less than 100k, but…)
Please provide links to verify your claim that the government can only impose a fee “sufficient to cover it’s costs”. Thank you for your attention to this matter.
eot
Anything more than that is a tax, and the constitution explicitly says only Congress can impose those.
There is nothing written anywhere that says government Dan only charge enough to cover the admin costs of a thing. Any government can’t use fees as it sees fit, in this case a high fee was used as a way of dissuading people from applying for a certain type of fee.
I’m surprised such a deep thinker as yourself is making such an absurd claim Justice Mulhouse 😂
Oh, really?
“Provided further that fees for providing adjudication and naturalization services may be set at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants. Such fees may also be set at a level that will recover any additional costs associated with the administration of the fees collected.”
Kinda but mostly true in a purely academic sense limited to outdated thinking. Another way to skin the cat is to offer a ‘fast lane’ for H1B review and approval. Totally voluntary and companies may choose or decline to participate. Set the rate at….$100K per application. Alternatively the company could decline to participate. Given the backlog accords all sorts of immigration actions/decisions the Admin could simply put all unprocessed decisions into one pot to be decided in order received which seems very fair. When the several million bogus asylum claims and TPS claims and so on many of which are decades old reach a final decision, then newer pending cases like current year H1B applications could be dealt with. Might be a very long wait unless the ‘fast lane’ option is utilized.
says what law?
Says the constitution. A “fee” that is designed to produce revenue is a tax.
Fine… so let’s require on-the-ground, home-country background checks including examination of scholastic records and arrest records for each visa candidate. Naturally we would also want a social media review. It probably won’t even cost $100K per applicant. Maybe only $30K but it’ll take six months and it WILL keep the fakirs and riff-raff. But it will be a legitimate fee.
It’s so obviously a fee. It’s not even close.
This is why 1) government must be kept small and out of most of life, so these games can’t be played, and 2) we need to start pulling these folks from their offices and providing direct consequences for their activism.
Of course, both of those require a moral, religious, and properly educated citizenry. And getting that one back is a long road.
Well, Chief Justice Roberts said that an “obligatory fee” was not a tax when he caved on Obamacare, so I would trade a reversal of that decision to keep this judge’s order on a non-obligatory fee.
I was going to point out that SCOTUS CJ “Spineless” Roberts had used that opinion as the sole criteria for keeping Obamacare alive.
Let us hope (without actual cause) that when the Trump administration appeals this decision that they point out that if the Supreme Court upholds it that Obamacare will automatically be considered to be null and void.
Roberts, Thune, including the Senate Parliamentarian, must all resign. All Trump supporting American citizens have had enough with band of RINO’s.
What on earth are you talking about? How does calling one fee a tax stop the court from also calling another fee a tax? Surely they are both taxes. It’s not even that your argument is wrong; it’s incoherent. I can’t even figure out what it is, in order to address it.
How cleverly you attempt to dissemble, Democrat.
He did not say ‘call a fee a tax’.
He said that they’d already called this type of tax a fee, to support your Democrat gods ‘obamacare’.
We are not like your benighted leftist fellows, Milhouse.
You are a lying piece of shit, and you keep on lying here. Every single word you wrote is a lie. As usual.
Where is the lie, Democrat?
He did not say ‘call a fee a tax’.
Show where he said ‘call a fee a tax’
You can’t.
Show where he didn’t say ‘that they’d already called this type of tax a fee, to support your Democrat gods ‘obamacare’.
You can’t.
You dissemble.
You call everyone a liar because you think it hides your constant lies.
It doesn’t.
You lie in service to the left. And all can see it.
Huh? No, he didn’t.
The decision in NFIB was not about the distinction between a tax and a fee, but on that between a tax and a penalty. Roberts laid out the key differences between them, and showed how on each one the 0bamacare fee fit the definition of a tax and not that of a penalty.
One of the key distinctions was that a penalty is levied for something that is illegal. You’re not entitled to choose to break the law and pay the fine. You have to keep the law, and if you don’t you have to pay the fine. Whereas with 0bamacare there was no obligation at all to buy insurance. Everyone was perfectly free to choose to remain uninsured and pay the money. That meant it was not a penalty for illegal behavior, but a tax on legal behavior.
Here the key distinction is between a tax and a user fee. User fees are supposed to cover the cost of administration only, and not be a source of revenue for the government.
But really the administration’s argument here seems to be that if the president can cut off these visas altogether, then a fortiori he can choose to allow them but at an exorbitant fee. That was the exact same argument it made about tariffs, and it lost. The court said the president could restrict imports but he could not tax them. How is this different?
Do the companies actually look for qualified American candidates or just pay the nominal fee of only a few grand? A higher fee might encourage them to in fact look for a qualified American to hire.
In most cases, I’d say sort of. While there are explicit postings made where H-1B candidates are actively being solicited, it is usually sort of happenstance that a candidate gets the offer and the company then has to sponsor them with an H-1B. As a hiring manager, we weren’t supposed to inquire about their status — that was for HR to sort out. Arguably, the H-1B people competed fairly with US citizens — at least from a hiring manager standpoint. But I have never worked anywhere where we were told to explicitly hire H-1B,
I have noted a fair number of job posts recently that indicate that the hiring company will not do H-1B sposorships for an open role and I know of companies that seem to be thinning the ranks of existing H-1B people. That said, the real problem is with the body shops that hire thousands of H-1B people as contractors. Those folks are effectively indentured servants. Crappy pay and completely beholden to their employer and the company hiring them as a contractor. If they no longer have a spot, they are shipped back home.
it is usually sort of happenstance that a candidate gets the offer
Ummm, no. Usually the job is perfunctorily advertised with a lower than average wage, while the company already has their visa candidate in mind. Vast numbers of Americans don’t apply because the wage is below the prevailing average. Or they apply but don’t get hired because they ask for more money than the company is offering – which sounds like a fair application of market principles, but they’re doing it because they already have someone who will work for those lower wages on the string.
Not to mention the collision with a third party H1B placement broker who takes a cut of the pie to put the foreign worker in the queue to land the job.
At the risk of making a generalized comment that can be chewed up in specific cases: “qualified American candidates” are becoming rare. See the many tales of students entering college/university without basic arithmetic skills, unable to read/comprehend/understand, and so forth. I knew a recent high school graduate (neighbor), honor society etc — could not compute 10% of a number in their head, and could not reliably get the correct answer using other methods.
Repairing the education system will take at least a generation – if that is even possible. In the meantime, companies have to do what needs to be done.
USG mandates look great from Washington DC – but, on the field, the mandates become impossible.
We need to move from treating symptoms to treating the underlying pathologic disease.
//OLDSCHOOL SENDS//
Replacing the education system will take at least a generation.
Our system of government schools is un-American and unrepairable.
“unconstitutional tax imposed without any act of Congress.”
thne how is it nayyyy different when unelected red tapers make new regs ? that cost certain people more ( or less) money!!??
its not
yet the courts allow the non congressional to impose their will over the people
the tea is brewing
correction:
then
any
First of all, they can only make regulations as authorized by statute.
Second, a regulation is a ban on certain behavior; it doesn’t say “doing X will cost you money”, it says “you can’t do X at all”, and therefore people have to do Y instead, which costs more. That’s obviously not a tax; the government doesn’t get anything from it, so how can you call it a tax?
But third and most important, the constitution specifically says only Congress can impose taxes. The president cannot do that. So that is the big difference.
“doing “x” will in fact cost you moeny so Im not sure where yo are coming form:::
The Internal Revenue Service (IRS) has released its full list of changing tax rules for 2025, and Americans are likely to see major updates to standard deductions and certain tax credits.
The IRS annually updates its inflation adjustments for each tax and the new rules will go into effect for tax returns filed starting in the 2026 filing season.
In 2026, for the tax year 2025, the standard deduction got a $400 boost, making it $15,000 for single filers. Married couples filing jointly will see a standard deduction of $30,000, which is up $800 from 2024.
“the gov doesnt get anything from it”
huh!!!!!
The Internal Revenue Service (IRS) has released its full list of changing tax rules for 2025, and Americans are likely to see major updates to standard deductions and certain tax credits.
The IRS annually updates its inflation adjustments for each tax and the new rules will go into effect for tax returns filed starting in the 2026 filing season.
In 2026, for the tax year 2025, the standard deduction got a $400 boost, making it $15,000 for single filers. Married couples filing jointly will see a standard deduction of $30,000, which is up $800 from 2024.
try it this way:
“doing “x” will in fact cost you moeny so Im not sure where yo are coming form:::
The Internal Revenue Service (IRS) has released its full list of changing tax rules for 2025, and Americans are likely to see major updates to standard deductions and certain tax credits.
The IRS annually updates its inflation adjustments for each tax and the new rules will go into effect for tax returns filed starting in the 2026 filing season.
In 2026, for the tax year 2025, the standard deduction got a 400 boost, making it 15,000 for single filers. Married couples filing jointly will see a standard deduction of 30,000, which is up $800 from 2024.
“the gov doesnt get anything from it”
huh!!!!!??
First of all, they can only make regulations as authorized by statute.
And that is entirely wrong. The law should set all boundaries and conditions, and regulations should be what enables the law to be enforced. Instead, we get the bureaucracy setting the actual rules because Congress doesn’t want the responsibility.
Also, since when is a regulation only a ban on behavior? Baloney. An awful lot of regulations say “You must do X in a certain way.” And that most definitely costs the person or org doing X. Now, because this is partly about the pedantry involved in declaring something a “tax” or a “fee”, I’ll grant it doesn’t actually tax the person or org doing X. But it IS a “tax” rhetorically speaking.
As to imposing the tax itself, didn’t Congress already do that? But, they left it to some other body (hint: the Executive) to determine the amount? Seems if it was a tax, then they would have specified the amount when they authorized it.
The “regulation” of H1B hiring activity should be that the procedure must be followed that the hiring manager must walk naked wearing a sandwich board that says “WAGE SLAVE TRADER” from one end of the state to the other for each hire.
At least that would get the Karens out of HR.
It’s impossible for Congress to make all the needful regulations. That’s why it has always authorized the executive to make regulations to implement the laws it makes.
i.e. you may not do it in some other way that would be cheaper.
What has rhetoric got to do with it? We are talking about actual law, not rhetoric. Rhetorically you can call anything anything else. You can call a tax a “penalty” because you don’t like to admit you’re imposing new taxes. That’s what happened with 0bamacare. Or you can call an unconstitutional penalty a tax, in order to hide its unconstitutionality, as happened in Bailey v Drexel, the Roberts cited. But either way the law doesn’t care what you call something, it only cares what the thing is. That’s why the so-called “tax” in Bailey was struck down, while the so-called “penalty” in NFIB was upheld.
No, it didn’t.
H1b was always a shitty program that allowed corporation to avoid hiring troublesome Americans in favor of compliant foreigners at lower salaries, This depressed American salaries for years. The foreigners often were substandard and many lied on their resumes,
There are often are competent Americans with close but not the exact skills to do a specific job. God forbid the company has to spend an amount of time retraining someone with a perfect track record of past accomplishment.
Outsourcing of work to another country is a crap shoot. It often doesn’t work again because the people in the other country often don’t have the skills or aren’t given sufficient direction as to what to do. Also, it ain’t their product so they don’t really care, It can work though in certain instances just not generally. You will have risk of having your proprietary property stolen,
For similar reason moving a company overseas is a crap shoot. Good luck with that. The value in a company is often in its employees. Good luck replacing all of them.
My views are based on 30 years in the computer industry and watching all manner of approaches attempted, Needless to say I was completely jaded and cynical by the time I retired with a very poor opinion of most executives and by extension the shills in HR. So sue me!
Gee..
I thought these were outright sales.
You want a visa? $100,000.00
I never thought of it as anything else.
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