Dive Brief:
- A group of 20 states filed a lawsuit Friday alleging that President Donald Trump’s executive order implementing a $100,000 fee on new H-1B skilled worker visas is unlawful, and should be vacated and set aside.
- The plaintiffs in California v. Noem, each of them being an attorney general for a Democratic state, claimed that the fee is arbitrary and capricious in violation of the Administrative Procedure Act, and fails to adhere to that law’s procedural requirements. The complaint alleged the administration exceeded statutory authority and usurped congressional authority over immigration and revenue collection.
- Friday’s complaint in the U.S. District Court for the District of Massachusetts is at least the third such lawsuit challenging Trump’s H-1B policy. Other challenges include a California lawsuit filed by several unions, industry groups and other co-plaintiffs, as well as a challenge filed in Washington, D.C., by the U.S. Chamber of Commerce.
Dive Insight:
California and Massachusetts are the lead state plaintiffs in the lawsuit, which claimed several anticipated negative effects could result from Trump’s order. The complaint identified public schools, university-level research institutions and healthcare systems as entities whose operations are particularly threatened by the $100,000 fee.
Illinois, for example, claimed that the new fee “effectively eliminated” the Chicago Public Schools’ use of H-1B visas to fill roles such as those in bilingual and special education. Maryland similarly said a loss of access to the visas would pose a “grave risk” to classroom staffing in its Baltimore City Public Schools district.
The plaintiffs claimed that the U.S. Department of Homeland Security’s authority to assess fees in connection with H-1B visas is limited to levels that are commensurate with agency costs and that the $100,000 fee “bears no connection to any costs” borne by immigration and customs authorities.
“The Trump Administration thinks it can raise costs on a whim, but the law says otherwise,” California Attorney General Rob Bonta said in a press release announcing the lawsuit. “We are going to court to defend California’s residents and their access to the world-class universities, schools, and hospitals that make Californians proud to call this state home.”
Trump issued the executive order imposing the new fee in September. At the time, the president justified the decision by noting “systemic abuse” of the H-1B program that “has undermined both our economic and national security.” Trump also criticized employers, saying some abused the visa program to the disadvantage of American citizens.
The initial order spawned confusion for participating employers and an array of questions, some of which the government addressed in an October regulatory update. The announcement noted that employers could pay the fee at a Treasury Department website and clarified that it would not be applied to petitions requesting an amendment, change of status or extension of stay for noncitizens who are inside the U.S., so long as the request is granted by the U.S. Citizenship and Immigration Services.
In a blog post, law firm Fragomen said employers and foreign nationals “should stay on top of developments in the lawsuits because court orders, government guidance, or both could mean new instructions with little notice.”
