Quick Hits

• A group of plaintiffs has filed a lawsuit challenging President Trump’s proclamation imposing a $100,000 fee for new H-1B visas.
• The lawsuit argues that the fee exceeds presidential authority under the Immigration and Nationality Act and violates the Administrative Procedure Act.
• The plaintiffs seek to prevent enforcement of the fee and have the proclamation’s related sections declared unlawful by the U.S. District Court for the Northern District of California.

Background

The proclamation, titled, “Restriction on Entry of Certain Nonimmigrant Workers,” triggered urgent concerns from companies with H-1B workers outside of the United States and the workers themselves, as the plain reading appeared to indicate individuals outside the United States on or after September 21, when the proclamation took effect, would be subject to the fee. In the hours and days following its issuance, the White House and government agencies released additional guidance on social media, in memoranda, and through frequently asked questions (FAQs). The proclamation includes a national interest exception, though details remain pending.

The plaintiffs—including nursing, academic, and religious organizations, unions, and anonymous individuals—seek to prevent enforcement of the $100,000 fee and for the proclamation’s sections pertaining to restrictions on entry, adjudication, and visa issuance without fee payment to be declared unlawful.

Key Arguments of the Plaintiffs

The plaintiffs’ central contentions are set forth below.

• The plaintiffs contend the proclamation, specifically its imposition of a $100,000 fee, exceeds the powers granted to the executive branch and is contrary to the congressional intent of the Immigration and Nationality Act (INA), which governs the H-1B visa program.
• They allege the proclamation violates the notice and comment requirements under the APA and that the new fee requirement is arbitrary and capricious.
• The plaintiffs highlight other alleged deficiencies in the proclamation, including the lack of prescribed processes regarding the eligibility of the national interest exception and how and to which agency the fee will be paid.
• The plaintiffs also point to alleged discrepancies between the text of the proclamation and subsequent agency explanations—namely, it is still unclear whether the fee applies to all “new” H-1B petitions or only those being filed for individuals who are outside of the United States.

Relief Sought

The plaintiffs are asking the court to declare the proclamation unlawful and to enjoin the defendants from requiring the $100,000 payment or conditioning H-1B petition approvals, visa issuance, or entry into the United States on the receipt of the $100,000 payment.

What This Means for Employers

If the plaintiffs prevail in their claims, the proclamation could be limited in scope or enjoined completely. Enforcement of the $100,000 fee requirement would not be implemented.