An Oakland courtroom fight over US President Donald Trump’s $100,000 fee on certain H-1B workers took a notable turn on Thursday, after a government lawyer revealed that only about 70 employers have actually paid the charge so far, Bloomberg reported.
The hiked fee applies to H-1B workers hired from outside the United States. It was imposed through a White House proclamation in September as part of an ongoing immigration crackdown.
At a hearing in Oakland on Thursday, a government lawyer said that low number tells its own story.
H-1B Visa Fee: Government says low payments show its not a tax
Tiberius Davis, a Department of Justice attorney, told the court that the limited number of employers paying the $100,000 fee undercuts claims that the measure is a revenue-raising tax. “The small number of fee payers goes to show it’s not a tax because it’s not raising revenue,” Davis said, according to Bloomberg.
The argument comes at a sensitive time, given that earlier this month, the Supreme Court of the United States struck down the Trump administration’s global tariffs regime. The justices ruled that the Constitution gives Congress, not the president, the power to impose taxes. However, the government argued that H-1B fee is not meant to raise revenue and therefore does not require the same kind of clear congressional approval as a tax.
The Oakland case was filed by Global Nurse Force, a nurse recruiting firm, along with other plaintiffs. They argue that the $100,000 H-1B fee has effectively eliminated the specialty occupation visa program for small employers. The H-1B visa program allows US companies to hire skilled foreign workers for specialty jobs. According to the plaintiffs, the steep charge makes it nearly impossible for smaller firms to participate.
Global Nurse Force argues that Congress only allowed immigration fees to cover the cost of running visa programs, not to create barriers. The lawsuit also says the fee is “arbitrary and capricious” and that the government failed to follow required notice-and-comment procedures under the Administrative Procedure Act.
Supreme Court Tariffs ruling and learning resources v. Trump
Lawyers challenging the fee say the recent Supreme Court ruling strengthens their case. Esther Sung, legal director at Justice Action Center and counsel for the plaintiffs, said the court no longer draws a strict line between regulatory and revenue-raising taxes.
“The Supreme Court has reiterated that when Congress is going to delegate discretionary authority to the executive to impose monetary assessments of any kind, regardless of whether they are characterised as fees or taxes, it has to do so clearly,” she said. “That delegation has to be expressed.” Sung pointed to the ruling in Learning Resources, Inc. v. Trump, saying it reinforces that principle. In that decision, the justices made clear that taxing powers belong to Congress, not the executive branch.
Is Trump’s proclamation reviewable?
Davis countered that point in court. He argued that because the fee was imposed through a presidential proclamation, not an executive order, it is not subject to review under the Administrative Procedure Act. The hearing took place at the US District Court for the Northern District of California before Judge Haywood S. Gilliam Jr.
According to Bloomberg, the judge did not issue a ruling on the plaintiffs’ request for a preliminary injunction or on their motion for class certification. However, he denied the government’s request to pause the proceedings while a related case moves forward on appeal in Washington.
He also asked both sides to file additional written arguments on how the Supreme Court’s recent tariffs ruling could affect the H-1B fee case.