A court determined that imposing the $100,000 charge on H-1B visa filings runs afoul of the Administrative Procedure Act.
Yesterday, in Global Nurse Force v. Trump, the U.S. District Court for the Northern District of California handed down a ruling that blocks the Trump Administration’s $100,000 charge for H-1B visa applications—mechanisms used by technology companies, research institutions, and other entities to recruit immigrant workers with specialized expertise. Judge Haywood Gilliam, Jr. concluded that the fee violates the Administrative Procedure Act (APA) in part because the administration did not complete the required notice-and-comment rulemaking.
This marks a second district court decision opposing the $100,000 fee. The initial ruling, issued in June by a federal district court in Massachusetts, relied on somewhat different grounds. It found that the imposition of the fee represents a usurpation of Congress’s power to tax, and that the relevant federal statutes do not delegate that authority. I share the view expressed in that earlier ruling, which I discussed in detail here. The Massachusetts decision also determined that the fee violates the APA.
Because the earlier ruling already blocks the $100,000 fee and the U.S. Court of Appeals for the First Circuit declined to stay that decision, the new ruling does not have immediate practical effect. Yet its significance lies in the fact that a second federal court has rejected the policy on a distinct analytical basis. This development increases the potential that appellate courts—and possibly the Supreme Court—could reach a similar outcome. As with legal questions, different arguments may resonate with different judges. For plaintiffs challenging the fee, having multiple viable avenues to prevail is a favorable sign.
I will not attempt a detailed analysis of yesterday’s decision, given that I am not an APA expert. Instead, I will close by noting my hope that appellate courts will ultimately affirm these district court rulings. The Cato Institute, Professor Michael McConnell, and I plan to file an amicus brief supporting the Massachusetts ruling in the U.S. Court of Appeals for the First Circuit.
I have previously criticized the $100,000 H-1B fee on both legal and policy grounds here, here, and here.
