Immigration Questions And Lawsuit Cast Doubt On $100,000 H-1B Visa Fee

Donald Trump, joined by Commerce Secretary Howard Lutnick (L), delivers remarks before signing a proclamation imposing a $100,000 fee on many H-1B visa holders and an executive order on the “Gold Card” on September 19, 2025. (Photo by Andrew Harnik/Getty Images)

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A lawsuit raises new questions about the future of the Trump administration’s proclamation imposing a $100,000 fee on H-1B visa holders. Employers remain concerned about who the immigration fee applies to, when it would be paid and how the proclamation’s national interest exception works. At least one business organization has sent a letter to the Trump administration seeking answers to questions about the proclamation.

H-1B temporary visas are often the only practical way for a high-skilled foreign national to work in the United States long term. The H-1B annual limit is 65,000, with a 20,000 exemption for individuals with a master’s degree or higher from a U.S. university. Under U.S. law, in addition to government fees that can exceed $6,000, employers must pay the higher of the actual or prevailing wage paid to U.S. professionals with similar experience and qualifications. At U.S. universities, international students account for 73% of full-time graduate students in electrical and computer engineering.

Immigration Lawsuit Filed By A Diverse Group Of Plaintiffs

On October 3, 2025, plaintiffs, including a church, unions, a pastor, a professors’ group and a nurse staffing company, filed a lawsuit against the Trump administration to block a $100,000 fee imposed on the entry of H-1B visa holders. The fee was contained in a September 19, 2025, presidential proclamation. The diversity of plaintiffs emphasizes that the H-1B visa category allows foreign nationals to work in various fields, including healthcare, religion, architecture, teaching and others.

The proclamation presented arguments only on the alleged need to block H-1B visa holders from working in high technology fields. Economists and others refuted those arguments. A National Foundation for American Policy analysis found the unemployment rate for computer and mathematical occupations declined from 3.4% to 3.0% between August 2024 and August 2025, and the number of U.S.-born workers employed in those occupations increased by over 2.7 million, or 141%, between 2003 and 2024.

The proclamation is one of several administration measures that would change or restrict high-skilled immigration policies. In August, DHS proposed a rule to limit international students by replacing the current policy of “duration of status” with fixed admission periods. In September, Trump officials proposed a new immigration rule to change the H-1B selection process to favor people in senior positions over recent international students.

In the complaint filed in Global Nurse Force v. Trump, plaintiffs make four primary arguments against the proclamation. Attorneys focused on the president’s use of a fee.

First, the plaintiffs argue the proclamation exceeds the president’s legal authority. “The cited statutes . . . cannot be reasonably interpreted to be a delegation of Congress’s tax power,” according to the complaint. “If these provisions were interpreted to provide this authority, they would violate the nondelegation doctrine because they contain no intelligible principles to guide decision-making on the amount of money that can be raised or the use of the money collected.” The plaintiffs stated that the proclamation would violate the “major questions doctrine” due to the lack of Congressional authorization for an action of great political and economic significance. “There is no basis for delegated authority for the President to raise and spend money as he sees fit.”

The complaint asserts the $100,000 payment into an “unspecified account for unspecified uses” conflicts with and replaces what Congress has written into the law for approving the entry of H-1B visa holders and the immigration fee structure for adjudications, including for the H-1B visa category.

Second, plaintiffs write that the proclamation violates the Administrative Procedure Act because it is not in accordance with the law and exceeds statutory authority. Attorneys state that the required $100,000 fee contradicts the entry and approval standards for H-1B visa applicants, the fees charged employers when submitting applications for H-1B petitions, how the fees may be used and the fees charged for adjudicating applications. The complaint also alleges administration officials do not have the legal authority “to stop adjudicating petitions and visas or to bar individuals from entering the country unless their employers have paid $100,000.”

Third, attorneys argue the proclamation violates the Administrative Procedure Act because it is arbitrary and capricious. They note the $100,000 payment is not tied to the cost of adjudicating H-1B petitions. The complaint also alleges that Trump officials “failed to consider the adverse impacts of the $100,000 requirement on small businesses, non-profits, and governmental jurisdictions, as required by the Regulatory Flexibility Act,” and the negative impacts of the fee on schools, hospitals, religious organizations and underserved communities struggling to find teachers, doctors and nurses. The complaint also states the administration failed to consider alternative ways to address the problems it alleges in the H-1B category.

Fourth, plaintiffs argue that the Trump administration failed to follow the law on notice-and-comment rulemaking and engaged in rulemaking without observing the legally mandated procedures. Attorneys note that the Administrative Procedure Act requires public notice and an opportunity to comment on legislative rules. “The new requirement of a $100,000 payment is a legislative rule within the meaning of the APA,” according to the complaint. “It ‘imposes new obligations’ on H-1B petitioners, as the $100,000 payment must ‘accompany’ their petition and the petitions will not be adjudicated and their workers will not be granted visas or be allowed to enter the United States without it.”

Charles Kuck, an attorney in the case, said in an interview, “There are several reasons that support this litigation, but the fundamental legal principle in our constitutional republic is that only Congress can create taxes. The $100,000 proclamation is not a fee, it is not a gift, and it is not a fine. It is a tax.”

Attorneys for the plaintiffs, working pro bono, are Karen C. Tumlin, Esther H. Sung, Laura Flores-Perilla, Hillary Li and Brandon Galli-Graves of the Justice Action Center, Charles Kuck of Kuck Baxter, Zachary R. New of Joseph & Hall, Cynthia Liao, Johanna N. Hickman and Elena Goldstein of the Democracy Forward Foundation, Kalpana Peddibhotla of the South Asian American Justice Collaborative, Jesse Bless of Bless Litigation and Greg Siskind of Siskind Susser.

Plaintiffs filed the complaint in the U.S. District Court for the Northern District of California, the same venue where, on October 1, 2020, Judge Jeffrey S. White issued a preliminary injunction against the Trump administration’s June 2020 proclamation. That proclamation suspended the entry of foreign nationals on H-1B, L-1, H-2B and most J-1 temporary visas. In his order in that case, NAM v. DHS, Judge White wrote, “There must be some measure of constraint on Presidential authority in the domestic sphere in order not to render the executive an entirely monarchical power in the immigration context, an area within clear legislative prerogative.”

Judge White cited an amicus curiae brief from law professors that all past presidents “had issued such Proclamations with the basic understanding that ‘exercises of authority under § 1182(f) must connect to the United States’ relations with foreign powers.’ As the Court examines this Proclamation in the immigration context aimed to address purely domestic considerations, the amicus suggest that ‘[g]iven this lack of pedigree on past practice, this Court should scale back deference that it affords the current proclamation.’” The ban ended after Joe Biden took office.

United States Department of Commerce sign is seen on the building in Washington D.C. on July 12, 2024. (Photo by Jakub Porzycki/NurPhoto via Getty Images)

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Immigration Questions Persist About The Proclamation From Employers

When the president signed the H-1B proclamation in the Oval Office, it prompted questions from employers that remain unanswered. Commerce Secretary Howard Lutnick told journalists the $100,000 fee would be annual and implied it would apply to all H-1B visa holders. Lutnick said, “A hundred-thousand dollars a year for H-1B visas, and all of the big companies are on board. We’ve spoken to them.” The actions of companies following the Oval Office announcement led to news reports casting doubt on Lutnick’s statement regarding business support for the $100,000 fee. Employers, including large technology companies, contacted H-1B employees to urge them to return to the United States within 24 hours to ensure they could enter the country.

The presidential proclamation bans the entry of individuals on H-1B visas “except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000—subject to the exceptions set forth in subsection (c).” Section c states that the $100,000 fee “shall not apply to any individual alien, all aliens working for a company, or all aliens working in an industry, if the Secretary of Homeland Security determines, in the Secretary’s discretion, that the hiring of such aliens to be employed as H-1B specialty occupation workers is in the national interest.”

The proclamation did not provide additional information on the “national interest” exception. However, it included a statement that confused employers about government actions taken inside the United States: “The Secretary of Homeland Security shall restrict decisions on petitions not accompanied by a $100,000 payment for H-1B specialty occupation workers . . . who are currently outside the United States.” The president’s authority under 212(f) blocks the “entry” of foreign nationals, not actions inside the country.

After pushback and questions from companies, the White House, the State Department, Customs and Border Protection and U.S. Citizenship and Immigration Services issued similar statements that indicated existing H-1B visa holders returning to the United States and those with pending or approved H-1B petitions or validly issued H-1B visas would not have to pay the fee. According to Customs and Border Protection, “The Proclamation applies prospectively to petitions that have not been filed. It does not impact aliens who are beneficiaries of currently approved petitions, any petitions filed prior to 12:01 AM ET on September 21, 2025, or aliens in possession of validly issued H-1B nonimmigrants visas.”

An employer who petitions for an individual, such as an F-1 student, who changes to H-1B status without leaving the United States should not have to pay the $100,000 fee. However, agency memos were not precise. The CBP memo states that the fee only applies to individuals outside the United States, but the USCIS memo does not say that, and USCIS adjudicates H-1B petitions, notes Dan Berger of Green & Spiegel.

The HR Policy Association, whose members include many of the nation’s largest employers, sent a letter on October 3, 2025, to the president and cabinet officials, asking the administration to clarify the parameters of the $100,000 fee. The association wanted assurance on whether the $100,000 fee would apply “to any H-1B petitions other than those selected in the 2026 lottery or later.” Other important questions: “The Proclamation says ‘new H-1B employment,’ does that include intra-U.S. transfers from one H-1B employer to another?” And “Are H-1B cap-exempt employers exempted from the $100,000 fee?”

The letter asked several questions about the national interest exemption, including which agency is responsible for making the determination, what the process is for seeking the exemption, which agency will collect the fee, how the grant of a national interest exemption will be documented, and whether it can be used “in all subsequent petitions.”

The association also asked how an employer would submit the fee, “appeal a denial and potentially recoup the $100,000 fee if the denial was unjustified,” and, relatedly, “Will there be any process for recovering the $100,000 fee if a petition is denied?”

The next step in the immigration lawsuit will be for the plaintiffs to file an amended complaint asking for summary judgment against the Trump administration and the proclamation. The lawsuit and the unanswered questions from companies guarantee the $100,000 H-1B fee will remain on the minds of employers, attorneys and high-skilled foreign nationals.

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