A judge in federal district court in Boston has short-circuited one of the Trump administration’s recent efforts to restrict legal immigration, ruling that President Donald Trump’s imposition by proclamation of a $100,000 fee for any new H-1B visa.—to be paid by employers—violates federal law.
Because the $100,000 payment is actually a tax, not an immigration penalty, the president lacks authority to impose it, Judge Leo T. Sorokin wrote.
Twenty states had sued to overturn the tax, claiming it would impede employers’ ability to hire teachers and educational and medical staff. Engineering firms are big users of H-1B visas, but the new fee, along with other measures taken by the administration, threatened to choke off a once reliable source of new hires.
The administration has indicated that it would appeal the decision, according to published reports. Government lawyers had argued that under federal law and regulations, immigration and national security are within the regulatory authority of a president and other elected officials.
But rather than being an immigration-related fee, the proclamation’s “payment requirement amounts to a tax, which exceeds the scope of the president’s discretionary authority under the [Immigration and Naturalization Act]Sorokin wrote.
The American Council of Engineering Cos. had opposed the fee and other measures the administration has taken to discourage H-1B visas.
In the past, employers have been able to hire foreigners on H-1B visas to fill vacancies.
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According to the rules for its use, employers must declare that they have not been able to fill a position with a non-immigrant. Federal rules allow 85,000 new H-1B visas each year, 20,000 of which are for higher-paid employees.
About 40,000 of the half a million H-1B visa holders in the US work in architecture and engineering, according to data cited by ACEC.
After issuing the fee proclamation, the administration issued new rules in February that changed the selection criteria for granting visas from a random process to one weighted to favor the highest-paid employees. This change applies to the 2027 H-1B cap filing season.
ACEC opposed the change last year, noting it was expected to reduce the number of engineering and architecture visas granted by 48,000.
Despite the average annual salary for a civil engineer in 2024 being $100,000, ACEC argued when the rule change was proposed that the new weighting method would tilt the selection process in favor of international technology companies that could afford to pay higher salaries for H-1B visa professionals.
