The US Chamber of Commerce (CoC) has filed a suit accusing President Trump of exceeding his authority by seeking to slap a $100,000 fee on H-1B visa applications.
H-1Bs are a favored tool of tech companies to fill high-end skills gaps with qualified foreign-born workers. The scheme has been the gateway to the US for the likes of Microsoft boss Satya Nadella, Zoom founder Eric Yuan, and former First Buddy Elon Musk.
Don’t panic: H-1B visas will cost companies $100K only for new petitions
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Yet Trump last month signed a proclamation “restricting entry unless employers make a $100,000 payment with the petition.” The proclamation stated companies were abusing the scheme, suppressing wages, laying off domestic workers, and undermining economic and national security.
Trump took particular aim at IT outsourcing companies in the proclamation, citing research that computer science and engineering graduates were facing worse prospects than biology and even art history graduates. Nothing to do with GenAI then.
The suit [PDF] names the Department of Homeland Security and the Department of State, and their respective heads, Kristi Noem and Marco Rubio, as defendants. It bangs the drum for the benefits of the program, highlighting its genesis in 1952 as a way to fill roles in “specialty occupations,” and the fact that Congress has maintained a cap on the scheme.
The group also flags up the US’s “well-documented labor shortage.” This includes doctors, with a shortfall of up to 139,000 physicians predicted by 2033, as well as gaps in education and STEM in general.
H-1B petitions are associated with higher levels of innovation, it argues, with the foreign-born share of STEM professions generating a benefit of $103 billion for American workers between 2000 and 2015.
Foreign-born workers also foster trade with foreign nations, it says, if that sort of thing is important to you. And it picks apart the basis for the president’s proclamation. This includes its deleterious effects on US businesses’ ability to fill gaps in STEM in particular, but also the underlying legality of the proclamation itself.
But the CoC’s legal eagles also claim the proclamation exceeds the president’s authority.
It argues that the imposition of a $100,000 fee is aimed at reducing the pool of applications. “That result – and the means taken to implement it – is flatly contrary to Congress’s directives, as stated throughout the INA [Immigration and Nationality Act].”
Congress had regularly reviewed the program, the suit says, and taken action to punish companies that misuse it, and to protect American workers. “The Proclamation upends that careful balancing,” it claims.
“Although the President has authority under the INA, that authority does not, and cannot, empower him to override existing statutory provisions and programs. Nor does it authorize the President to create new visa conditions in general.”
It also highlights the potential for the $100,000 fee to hit small innovative startups hardest. “The filter imposed by the new fee is therefore less about the quality and promise of the prospective employee, and more about the financial circumstances of the employer.”
The CoC wants the courts to declare that the proclamation and any agency action would exceed the executive branch’s lawful authority, and halt any action to implement it. And it wants its own fees and costs paid, as well as “such other and further relief as the Court may deem just and proper.”
The suit was accompanied by a blog post by Neil Bradley, Executive Vice President, Chief Policy Officer, and Head of Strategic Advocacy, praising the administration’s actions to secure US borders.
If anything, he continued, this meant the country could embark on meaningful immigration reform and invest in homegrown talent. That includes ensuring high school graduates are fit for the workforce.
“Congress should also take action to expand special pathways for certain high-skilled occupations that support our national interests, like staffing our hospitals and winning the AI race against China,” he wrote.
And there is room for individuals who had entered the US illegally, but not committed any other crimes. “Policymakers must find a reasonable path forward for those individuals who have been contributing to our economy and our communities in some cases for decades now.” ®
