The new $100k H-1B visa fee dispute is getting heated up as the plaintiffs, US Chamber of Commerce and the Association of American Universities, have submitted their response to the Trump administration’s defense of the president’s $100,000 H-1B visa fee, on December 10.
The Justice Department’s claim that the president has, in effect, unrestricted power to impose a $100,000 fee on H-1B visa holders through a September 19 presidential proclamation has been rejected by the plaintiffs in their move for summary judgment and opposition to the defendants’ cross-motion.
Plaintiffs Argue
The plaintiffs argue that in the context of immigration fees, either Congress must have directly legislated the fees (as it has for many fees applicable to H-1B petitions) or Congress must have explicitly delegated that authority to the Executive, while imposing limitations on the delegated authority). There is no third option.
For a fee to be authorized by the INA, it must fall into one of those two categories. Any other fee—like this one—both is unauthorized by statute in the first place, and conflicts with the fee provisions that Congress did include.
Trump’s Defence Arguments
On December 1, the Trump administration had given their defence arguments on the case.
The President explained that the high numbers of relatively low-wage workers in the H-1B program undercuts the program’s integrity and are detrimental to American workers wages and labor opportunities, especially at the entry level, in industries where such low paid H-1B workers are concentrated.
And abuses of the H-1B program present a national security threat by discouraging Americans from pursuing careers in science and technology, risking American leadership in these fields.
As a result, the President found that the unrestricted entry into the country of certain H-1B temporary workers would be detrimental to the interests of the United States because such entry would harm American workers, including by undercutting their wages.
Based on these finding, the President invoked his authority to adopt temporarily reasonable rules, regulations, and orders and/or to restrict temporarily the entry into the United States of aliens as nonimmigrants to perform services in a specialty occupation except for those foreigners whose petitions are accompanied or supplemented by a payment of $100,000—subject to the exceptions set forth in the Proclamation.
The defence lawyers argued that Section 1182(f) vests the President with extraordinarily broad discretion to suspend the entry of aliens whenever he finds their admission detrimental to the interests of the United States. Section 1185(a)(1) permits the President to adopt reasonable rules, regulations, and orders… as the President may prescribe with no prerequisites.
Oral arguments before U.S. District Judge Beryl A. Howell are set for December 19 at 10 a.m. in Washington, D.C.