A federal judge has blocked a policy introduced by US President Donald Trump requiring employers to pay a $100,000 fee when filing new H-1B visa petitions.
US District Judge Leo Sorokin ruled on Monday that the fee amounted to an unauthorised tax and struck down the policy.
In a ruling issued by the US District Court in Massachusetts, Sorokin said the policy violated both the federal Administrative Procedure Act and the US Constitution. He agreed with the plaintiffs that “the substance and application of the $100,000 payment reveal that it is a tax,” and found that Congress had not granted the executive branch the authority to impose such a charge.
The H-1B visa programme, created in 1990, is widely used by US technology companies to recruit highly skilled foreign workers. The programme allows US employers to seek government approval to hire non-immigrant workers in specialised occupations for periods of up to six years.
The fee formed part of broader restrictions announced by Trump in September targeting certain categories of non-immigrant workers.
Defending the measures at the time, the White House said: “American IT workers have reported they were forced to train the foreign workers who were taking their jobs and to sign nondisclosure agreements about this indignity as a condition of receiving any form of severance. This suggests H-1B visas are not being used to fill occupational shortages or obtain highly skilled workers who are unavailable in the United States.”
The White House also argued that “The abuse of the H-1B program is also a national security threat. Domestic law enforcement agencies have identified and investigated H-1B-reliant outsourcing companies for engaging in visa fraud, conspiracy to launder money, conspiracy under the Racketeer Influenced and Corrupt Organizations Act, and other illicit activities to encourage foreign workers to come to the United States.”
It further stated: “Further, abuses of the H-1B program present a national security threat by discouraging Americans from pursuing careers in science and technology, risking American leadership in these fields. A 2017 study showed that wages for American computer scientists would have been 2.6 percent to 5.1 percent higher and employment in computer science for American workers would have been 6.1 percent to 10.8 percent higher in 2001 absent the importation of foreign workers into the computer science field.”
The ruling effectively blocks the administration’s requirement that a $100,000 payment accompany new H-1B visa applications.
Faridah Abdulkadiri
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