Legal challenge to Trump’s H-1B fee faces tough questioning from judge
Washington: A federal judge signaled that US President Donald Trump may have sweeping authority under immigration law, even as she questioned a legal challenge to his administration’s decision to impose a $100,000 fee on companies seeking new H-1B visas for highly skilled foreign workers.
US District Judge Beryl Howell pressed attorneys for the US Chamber of Commerce and other plaintiffs who are asking the court to block enforcement of the presidential proclamation or strike it down outright. The policy, unveiled earlier this year, dramatically raises the cost for employers hiring foreign workers under the H-1B program.
Howell, an appointee of former President Barack Obama, pointed repeatedly to the breadth of powers Congress has delegated to the president to regulate the entry of foreign nationals. She cited statutory language allowing the executive branch to restrict entry and questioned whether there were meaningful limits on that authority.
“Congress has handed (those powers) to the president with a red ribbon on it,” Howell said, noting that the law permits the president to “impose on the entry of aliens any restrictions to be appropriate.”
The judge said it was “pretty hard to see limiting principles” in the provisions at issue and suggested that the Chamber of Commerce might be better served pursuing legislative changes rather than court action. Calling the business group a major political force, Howell said it knows “how to go to Congress and get Congress to modify statutes.”
The proclamation imposes a $100,000 fee on companies for each new H-1B visa application. The administration has argued the increase is necessary to curb what it describes as “systemic abuse” of the program that has undermined US economic and national security interests.
Zachary Schauf, an attorney at Jenner & Block representing the plaintiffs, countered that the president’s authority has never been used to impose such a fee. He said the move effectively regulates domestic employment, an area he argued falls outside the scope of the president’s unilateral powers.
Justice Department attorney Tiberius Davis defended the policy, saying exemptions for certain foreign nationals already in the United States show that the proclamation does not override the H-1B program itself. He said the fee functions as a restriction on entry, which Congress has allowed, rather than a rewrite of immigration law.
Howell also questioned whether the Chamber has standing to sue, noting that nonprofit organizations and other entities not subject to the H-1B cap may have “more clear standing.” The Chamber’s lawsuit is one of several challenging the new fee.
The H-1B program allows US employers to hire foreign workers in specialty occupations and is used heavily by the technology sector. It provides 65,000 visas annually, plus 20,000 additional visas for workers with advanced degrees from US universities. Before the proclamation, total H-1B-related fees typically ranged from about $2,000 to $5,000.
Trump has said the program has been abused by employers seeking cheaper labor and has ordered enhanced vetting of H-1B applicants, while proposing changes that would favor higher-skilled and better-paid workers.