Is the Trump administration’s proposal to impose a $100,000 fee on H-1B visa applications legally viable?
I. Background
On September 19, 2025, U.S. President Trump signed a presidential proclamation titled Restriction on Entry of Certain Nonimmigrant Workers. The proclamation criticizes the rampant abuse of the H-1B visa program by information technology (IT) companies, which has undermined the interests of U.S. domestic workers in computer-related fields. The proportion of IT professionals in the H-1B program has surged from 32% in Fiscal Year 2003 to an average of over 65% in the past five years. Many of the major employers are IT outsourcing firms that rely heavily on H-1B visas, enabling IT enterprises to hire foreign workers at significantly lower costs. For instance, studies have shown that wages for "entry-level" H-1B positions are approximately 36% lower than those for traditional full-time domestic employees. To cut labor costs, companies have shut down their in-house IT departments, laid off U.S. workers, and outsourced the work to low-wage foreign laborers. This trend has not only exacerbated employment difficulties for U.S. college graduates seeking jobs in the IT sector but also added greater strain to an already tight labor market in related fields. Additionally, multiple reports indicate that several major U.S. tech companies have simultaneously laid off large numbers of qualified, experienced domestic employees while recruiting H-1B foreign workers on a massive scale.
The presidential proclamation imposes unprecedented restrictions on the H-1B work visa program. It requires employers to pay a fee of $100,000 when filing H-1B visa applications or processing the entry of H-1B employees. Employers must also provide proof that they are paying the prevailing wage; failure to do so will result in visa denials or entry restrictions for the affected workers. The proclamation took effect two days after its signing.
This move quickly sparked widespread attention and controversy. Employers expressed concerns about increased cost burdens and compliance risks, immigration lawyers questioned the policy’s legality, and academics and public opinion generally agreed that the proclamation would likely face serious judicial challenges.
II. Legal Basis Cited by the President
The proclamation invokes two key provisions of the Immigration and Nationality Act (INA):
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INA § 212(f) (8 U.S.C. § 1182(f)): Grants the President the authority to prohibit or restrict the entry of any class of aliens if he determines that their entry would be detrimental to the interests of the United States.
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INA § 215(a) (8 U.S.C. § 1185(a)): Empowers the President and the Secretary of Homeland Security to impose conditions and restrictions on the entry of aliens and the issuance of visas.
The White House argues that the proclamation falls within the scope of the President’s broad discretionary authority to safeguard national interests and protect the domestic labor market.
III. Potential Legal Issues
1. Overstepping Congressional Legislative Authority
While § 212(f) confers broad powers on the President, its core purpose is to restrict entry, not to authorize the President to establish a substantive new fee system. Historically, Congress has set visa application fees and immigration-related charges through specific legislation. By unilaterally imposing a $100,000 fee via a presidential proclamation, the administration may be engaging in de facto lawmaking, exceeding presidential authority, and violating the principle of separation of powers.
2. Violating the Major Questions Doctrine
In recent years, the Supreme Court has emphasized that policy changes with significant economic and social implications must be explicitly authorized by Congress. Drastically increasing the cost of H-1B visa applications and altering wage benchmarks clearly qualify as major questions. Whether INA § 212(f) can be interpreted as authorizing the President to implement such large-scale economic interventions will be a central focus of judicial review.
3. Procedural Deficiencies and the Administrative Procedure Act (APA)
If the implementation details of the proclamation (such as fee collection methods and wage verification standards) require rulemaking by administrative agencies, the notice-and-comment rulemaking process mandated by the APA must be followed. Should the government attempt to bypass these procedures by directly enforcing the proclamation, courts may deem such action arbitrary and capricious.
4. Conflicts with Existing Laws
Provisions such as INA § 212(n) already explicitly define the wage obligations of H-1B employers. If the presidential proclamation imposes additional new wage benchmarks or fee requirements, it may directly conflict with existing legislation. According to legal precedents (e.g., RAICES v. Noem), courts generally do not permit the President to use § 212(f) to override or circumvent the immigration system explicitly established by Congress.
IV. Prospects for Judicial Review
Judicially, potential plaintiffs may include affected employers, industry associations, and prospective H-1B applicants. These parties have legal standing, as the proclamation will cause them concrete economic harm. Courts will focus their review on the following key issues:
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Whether the President’s actions fall within the scope of entry restrictions, or exceed his authority and encroach upon the legislative domain reserved exclusively for Congress.
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Whether the $100,000 fee constitutes a tax or a major economic measure, which would more likely trigger the Major Questions Doctrine and require explicit congressional authorization.
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Whether the proclamation violates procedural requirements under the APA or directly conflicts with existing laws.
The historical precedent Trump v. Hawaii upholds the President’s broad use of § 212(f), but that case involved nationality-based restrictions and national security concerns—not large-scale economic measures. Courts are likely to adopt a more cautious stance toward such overreaching actions.
V. Projections
Based on a comprehensive analysis of legal commentary and historical precedents, we offer the following assessment of the proclamation’s ultimate fate:
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Short Term: Federal courts are likely to see lawsuits filed quickly, and may issue temporary restraining orders (TROs) or preliminary injunctions to block the full implementation of the proclamation pending litigation.
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Medium Term: Certain provisions, particularly the $100,000 fee requirement, may be ruled invalid due to their clear overreach of authority and conflict with congressional legislation.
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Long Term: If the case is appealed to the Supreme Court, the Court may uphold the President’s authority under § 212(f) to impose certain entry restrictions on H-1B visa holders, but the provisions related to economic fees and wage standards face significant risks of being deemed ultra vires. The final outcome will likely be one of the following:
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Partial Invalidity: The fee and wage-related provisions are struck down;
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Partial Upholding: The President retains limited authority under § 212(f) to control the entry of certain H-1B workers, but is prohibited from unilaterally establishing new fee systems.
In summary, President Trump’s Restriction on Entry of Certain Nonimmigrant Workers proclamation responds politically to domestic calls for labor market protection, specifically targeting the alleged abuse of H-1B visas by IT outsourcing companies. However, the proclamation was hastily issued with an extremely short implementation window (signed at approximately 5:00 p.m. on a Friday and taking effect the following Monday), rendering it legally vulnerable. While the President’s authority under § 212(f) is broad, it is not unlimited. In particular, when his measures intrude on congressional authority over fee-setting and labor standards legislation, they are far more likely to be deemed an overreach of power. Courts will most likely invalidate parts of the proclamation, and its ultimate fate will probably be significant weakening or partial repeal.
The above overview is prepared byXIE LAW OFFICES,LLC. to provide legal information to the Chinese community. It is primarily for academic discussion purposes and does not constitute legal advice on specific cases. If you already have legal representation, please consult your own attorney, who is familiar with the details of your case. Clients of Xie & Associates Law Firm, as well as readers who have not yet retained legal counsel, may contact Attorney Xie for specific legal questions. If you wish to reprint this document, please do so in full without any deletions, and clearly indicate the source.
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