H-1B Visas: Is the Trump Administration’s Proposed $100,000 Supplementary Fee on H-1B Applications Legally Tenable?

I. Background

II. Legal Basis Cited by the President

1. 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 their entry is deemed "detrimental to the interests of the United States."
2. 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.

III. Potential Legal Issues

1. Exceeding Congressional Legislative Authority

   While § 212(f) confers broad powers on the President, its core purpose is "entry restriction"—not authorizing the President to establish a substantive new fee regime. Congress has historically set visa application fees and immigration-related charges through specific legislation. By imposing a $100,000 fee via presidential proclamation, the administration may be engaging in de facto "legislation," 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 H-1B entry costs 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 implementing details of the proclamation (e.g., fee collection methods, wage verification standards) require rulemaking by administrative agencies, the notice-and-comment rulemaking process under the APA is mandatory. Should the government attempt to bypass these procedures by relying solely on the proclamation, courts may deem the action "arbitrary and capricious."
4. Conflicts with Existing Law

   Provisions such as INA § 212(n) already clearly stipulate employers’ wage obligations for H-1B positions. If the presidential proclamation imposes additional wage benchmarks or fee requirements, it may directly conflict with existing legislation. Under established precedents (e.g., RAICES v. Noem), courts generally do not allow the President to use § 212(f) to override or circumvent immigration systems explicitly established by Congress.

IV. Prospects for Judicial Review

1. Whether the President’s actions fall within the scope of "entry restrictions," or exceed authority and encroach on legislative domains reserved exclusively for Congress.
2. 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.
3. Whether there are procedural violations under the APA and direct conflicts with existing laws.

V. Projections

• Short term: Federal courts are likely to see lawsuits filed quickly, and may issue a Temporary Restraining Order (TRO) or preliminary injunction to block full implementation of the proclamation pending litigation.
• Medium term: Certain provisions—particularly the $100,000 fee requirement—may be ruled invalid, as they most clearly exceed presidential authority and conflict with congressional legislation.
• 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, but there is significant risk that provisions related to economic fees and wage standards will be deemed ultra vires (beyond legal authority). The final outcome may be:
  • Partial invalidation of the proclamation: The fee and wage-related provisions are struck down;
  • Partial preservation of the proclamation: The President retains limited authority under § 212(f) to control certain H-1B entries, but is prohibited from unilaterally establishing new fee regimes.