Trump Admin Appeals Ruling Striking Down $100K Visa Fee

The Trump administration said Thursday it is appealing a judge's finding that President Donald Trump's $100,000 H-1B visa fee is an unlawful tax.

The federal government filed a notice of appeal days after U.S. District Judge Leo T. Sorokin in Massachusetts ruled the president lacked authority to impose a $100,000 payment for new H-1B visa petitions. The H-1B visa provides skilled workers who are not U.S. citizens temporary permission to work in the country.

On Monday, Judge Sorokin determined the visa fee was a tax, not a "regulatory payment," as the government had argued, and that the Immigration and Nationality Act did not give the president the authority to impose a tax. The judge declared the fee unlawful and vacated it.

Trump had announced the fee in September, describing it at the time as a response to abuses of the H-1B visa program and concerns about "a large scale replacement" in the workforce of Americans with foreign employees.

Monday's ruling, which came in a lawsuit brought by a coalition of states led by California, is the second decision to address the legality of the visa payment.

A judge in D.C., U.S. District Judge Beryl Howell, previously reached the opposite conclusion and said Trump had the authority to impose the fee as part of his power to restrict the entry of noncitizens into the U.S. The D.C. Circuit is currently reviewing the decision.

The states are represented by the offices of their respective attorneys general, including Michael L. Newman, Marissa Malouff, James E. Stanley, Denise Levey, Lorraine Lopez, James E. Richardson and Jeanelly Orozco Alcalá of the California Attorney General's Office and Michelle Pascucci, Nita K. Klunder, Gerard J. Cedrone and Julia S. Canney of the Massachusetts Attorney General's Office.

The federal government is represented by Tiberius Davis, David J. Byerley and Jeffrey Alderette of the U.S. Department of Justice Civil Division's Office of Immigration Litigation.

The case is State of California et al. v. Noem et al., case number 1:25-cv-13829, in the U.S. District Court for the District of Massachusetts.

Read more at: https://www.law360.com/immigration/articles/2488769?nl_pk=c8b1bc97-3db5-42d2-9ee1-f194ede68e7a&read_main=1&nlsidx=0&nlaidx=4?copied=1

USCIS Implements $10 Fee for H-1B Visa Registration

Release Date: Nov. 7, 2019

WASHINGTON—U.S. Citizenship and Immigration Services today announced a final rule that will require a $10 non-refundable fee for each H-1B registration submitted by petitioning employers, once it implements the electronic registration system. The registration fee is part of an agency-wide effort to modernize and more efficiently process applications to live or work in the United States.

The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.

Upon implementation of the electronic registration system, petitioners seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, will first have to electronically register with USCIS during a designated registration period, unless the requirement is suspended.

“This effort will help implement a more efficient and effective H-1B cap selection process,” said USCIS Acting Director Ken Cuccinelli. “The electronic registration system is part of an agency-wide initiative to modernize our immigration system while deterring fraud, improving vetting procedures and strengthening program integrity.”

The final rule, Registration Fee Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens, is effective Dec. 9, 2019, and the fee will be required when registrations are submitted. USCIS is fee-funded, and this non-refundable fee will support the new electronic registration system to make the H-1B cap selection process more efficient for both petitioners and the agency.

USCIS is slated to implement the registration process for the fiscal year 2021 H-1B cap selection process, pending completed testing of the system. The agency will announce the implementation timeframe and initial registration period in the Federal Register once a formal decision has been made, and USCIS will offer ample notice to the public in advance of implementing the registration requirement.

USCIS published a notice of proposed rulemaking highlighting a registration fee on Sept. 4, 2019, which included a 30-day public comment period. USCIS received only 22 comments during that time, and has considered all submissions and offered public responses ahead of announcing the final rule, which is effective on Dec. 9.