Second Federal Court Rules Against Trump's $100,000 H-1B Visa Fee

Yesterday, in Global Nurse Force v. Trump, the US District Court for the Northern District of California issued a decision blocking the Trump Administration’s $100,000 fee on applications for H-1B visas (which are used by tech firms, research institutions, and other organizations to hire immigrant workers with various specialized skills). Federal district Judge Haywood Gilliam, Jr. ruled that the imposition of the fee violated the Administrative Procedure Act (APA) because, among other things, the administration failed to go through “notice and comment” rule-making as required by the Act.

This is actually the second district court ruling against the $100,000 fee. The first one, issued in June by a federal district court in Massachusetts, relied in part on different grounds. It held that the imposition of the fee is a usurpation of Congress’s power to tax, and that the relevant federal statutes do not delegate that power. I agree with the earlier ruling, which I wrote about in detail here. The Massachusetts decision also held that imposition of the fee violates the APA.

Because the earlier ruling already blocks imposition of the $100,000 fee and the US Court of Appeals for the First Circuit refused to stay the , the new decision does not have any immediate impact. But it is nonetheless significant that a second federal court has ruled against the policy, and on a different ground. That suggests appellate courts (and, ultimately, perhaps, the Supreme Court) might rule the same way. As is sometimes the case, different arguments might appeal to different judges. From the perspective of plaintiffs challenging the fee, it helps that they have multiple potential pathways to victory.

I will not attempt analyze yesterday’s decision in detail because I am not an APA expert. So I will conclude by noting that I hope appellate courts will ultimately uphold these district court rulings. The Cato Institute, Prof. Michael McConnell and I plan to file an amicus brief supporting affirmance of the Massachusetts decision, in the US Court of Appeals for the First Circuit.

I previously criticized the $100,000 H-1B fee on both legal and policy grounds here, here, and here.

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