The Coort Strikes Down the $100,000 H1-B Visa Fee
You may have heard that back on September 19, 2025, President Trump signed an executive order requiring that the H1-B visa must be accompanied by a $100,000 fee for certain H-1B visa applications filed on or after September 21, 2025. The fee would not be applied to then current H-1B holders, renewals, or certain other H-1B petitions, according to later guidance. There is some confusion about who pays this amount. It is not the foreigner wanting to come to the U.S. typically for work purposes. The fee is imposed on the prospective employer of that person.
In a previous blog, I discussed the reasons behind imposing the fee, whether we should expect it to lead to a reduction in the number of new visa holders, and other consequences of the program. The implications are significant because in recent years, the number of foreigners who hold H1-B visas have been increasing, in part because the skills needed by U.S. employers that relate largely to Science, Technology, Engineering and Mathematics (STEM) are not being met by the supply of qualified candidates in the U.S.
What Does the Executive Order Require?
The Proclamation does the following:
- Requires a $100,000 payment to accompany any new H-1B visa petitions submitted after 12:01 a.m. eastern daylight time on Sept. 21, 2025. This includes the 2026 lottery, and any other H-1B petitions submitted after 12:01 a.m. eastern daylight time on Sept. 21, 2025.
- Authorizes the Department of Homeland Security and the Department of State to coordinate to take all necessary and appropriate action to implement this Proclamation.
This Proclamation does not:
- Apply to any previously issued H-1B visas, or any petitions submitted prior to 12:01 a.m. eastern daylight time on Sept. 21, 2025.
- Does not change any payments or fees required to be submitted in connection with any H-1B renewals. The fee is a one-time fee on submission of a new H-1B petition.
- Does not prevent any holder of a current H-1B visa from traveling in and out of the United States.
Further steps that will be taken to reform the H-1B program, as contemplated in the Proclamation, include:
- A rulemaking by the Department of Labor to revise and raise the prevailing wage levels in order to upskill the H-1B program and ensure that it is used to hire only the best of the best temporary foreign workers.
- A rulemaking by the Department of Homeland Security to prioritize high-skilled, high-paid aliens in the H-1B lottery over those at lower wage levels.
The Economic Innovation Group goes in great detail in explaining the program.
Rationale for Imposing the Fee
The H-1B policy was created in 1990 and is heavily used by U.S. tech giants to bring in highly skilled workers from overseas. The program allows U.S. employers to seek government permission to hire nonimmigrant workers in specialty occupations for up to six years.
Trump argued that the H-1B visa program was being misused and undermining U.S. economic and national security through the “large-scale replacement of American workers.” Before his proclamation, H-1B visa fees had ranged from $2,000 to $5,000 per application. The program is capped at 65,000 visas annually, plus an additional 20,000 for those with a master’s degree or a doctorate from a U.S. institution. Several companies, including Walmart, said that they would pause their participation in the H-1B program as a result of Trump’s proclamation.
As part of ongoing efforts by the Trump administration to reform the immigration system and prioritize American workers, Trump announced the new H-1B fee as a way to still attract the best and brightest, while also making sure the system was not being abused to bring in cheap labor. Critics said the steep fee increase would leave small- and medium-sized businesses reliant on foreign talent at a disadvantage. The conservative-leaning U.S. Chamber of Commerce announced right away that it was suing the Trump administration, alleging the president did not have legal authority to change the fee.
White House spokeswoman Taylor Rogers told CNBC in a statement: “President Trump has clear legal authority to restrict entry of any class of aliens he determines is not in America’s best interests, and that is exactly what he did. The H-1B program has been abused for decades, and President Trump finally took action to fix it. A federal judge in Washington already upheld a nearly identical order, and the Administration is confident this order will be reversed on appeal,” Rogers said.
Challenges to the Law
A lawsuit was filed in December 2025, against the Trump administration and a number of top officials. The U.S. Chamber of Commerce in October filed its own lawsuit challenging the $100,000 H-1B visa policy.
On Monday, June 8, 2026, a federal judge vacated President Trump’s $100,000 fee for employers’ H-1B visa applications for highly-skilled foreign workers.
The policy implementing the high fee on the visas for workers in a specialty occupation violated the federal Administrative Procedure Act and the Constitution, Judge Leo Sorokin declared in the ruling in U.S. District Court in Boston.
The Trump administration plans to appeal the decision.
“Every day, thousands of people with H-1B visas serve New Yorkers as doctors, teachers, and other skilled workers,” said New York Attorney General Letitia James, whose state was one of 20 states that sued to block the fee. Today a court put an end to this administration’s illegal attempt to destroy this critical program and the many jobs it makes possible,” James said.
Sorokin agreed with the states in finding “the substance and application of the $100,000 payment reveal that it is a tax,” and that Congress had not delegated that power to the executive branch.
The judge cited the Supreme Court’s opinion in February 2026, striking down Trump’s “reciprocal” tariffs on imports from most of the world’s countries because he lacked the legal authority to unilaterally impose them.
In that case, the high court ruled that tariffs assessed by the Department of Homeland Security “amount to taxes for the purposes of the Constitution’s Taxing Clause,” Sorokin noted. The Homeland Security Department is a defendant in the H-1B case.
Trump Responds
Trump blasted Sorokin’s decision when he was later asked by a reporter in New York if he would try to have Congress approve the fee.
“These federal judges are really giving us a hard time,” said Trump, who in recent weeks has seen federal judges order the removal of his name from the Kennedy Center in Washington, D.C., block a Department of Justice “Anti-Weaponization” fund set up to settle a lawsuit he filed against the IRS, and deliver other setbacks to his administration.
“It’s really crazy what’s going on with the court system,” he said. “They’re hurting our country very badly.”
My Views on a Macro Level
The problem with this and most other decisions made by Trump is he makes decisions seemingly on the fly and then considers the consequences thereafter. The decision to attack Iran and subsequent claims of reaching an agreement to end the war, and then backing away from it, and then restating that the agreement is imminent once again, exemplifies Trump’s reasoning that the end justifies the means. The problem is the means are very important and Trump’s failure to consider them, such as with the H1-B visa proclamation, is it plays havoc with the sanity of the American people, not to mention the stock market. It often feels like having whiplash—he does this and then reverses course, sometimes, it seems, on a whim.
Blog posted by Steven Mintz, PhD, Professor Emeritus from Cal Poly San Luis Obispo, on June 15, 2026. Visit Steve’s website to find out more about his activities.