H-1B alert: Trump's $100K visa fee status unclear after judge's temporary stay on ruling; USCIS continues issuing RFEs

H-1B fee; The Department of Homeland Security asserts the fee is valid while appealing the judge's ruling, prompting businesses to plan for its continuation.

A federal judge's recent decision to annul President Donald Trump's contentious $100,000 H-1B filing fee has been temporarily suspended, resulting in ongoing uncertainty for employers and foreign workers.

The $100,000 H-1B filing fee's annulment has been suspended, continuing uncertainty for employers. Immigration attorneys advise budgeting for the fee, pending the First Circuit's decision. Meanwhile, H-1B visa holders report facing harassment amid rising scrutiny of work-related visas.

On June 8, a federal judge invalidated Trump's $100,000 H-1B visa application fee, determining that it constituted an unauthorized tax. However, this relief was short-lived. US District Judge Leo Sorokin on June 12 implemented an administrative stay of his own ruling to maintain the current situation while the government seeks recourse from the US Court of Appeals for the First Circuit.

USCIS still issues RFEs

Speaking to The American Bazaar, Immigration attorneys informed that USCIS continues to issue Requests for Evidence (RFEs) related to the fee, despite the persistent legal disputes.

“With the $100,000 H-1B fee still under judicial review, companies may need to budget for the possibility that the fee remains in place, prioritize business-critical hires, and evaluate alternatives such as cap-exempt H-1Bs, L visas, O visas, or remote workforce models,” stated immigration lawyer Veena Vijay Ananth.

Here's what Department of Homeland Security and White House said

The Department of Homeland Security (DHS) has informed the Boston-based appeals court that Sorokin's ruling was erroneous, contending that the fee does not represent an unauthorized tax and that the decision should remain on hold while the appeal is ongoing. “Every day that passes more aliens can petition and enter the country despite the President’s determination that their entry would be detrimental” the DHS said.

The White House asserts that the president operated within his legal jurisdiction, whereas the department claims in its court submission that the administration possesses extensive authority under federal immigration law to implement such actions. This legal ambiguity has caused both H-1B applicants and employers to struggle with uncertainties regarding future developments.

To gain insight into the practical implications of the ruling, The American Bazaar consulted immigration attorney Gnanamookan Senthurjothi from The Visa Code regarding the present situation.

The order from June 8 is currently on hold while awaiting the appellate court's decision on whether the stay should continue during the appeal process, Senthurjothi clarified, adding that the district court's ruling that invalidated the fee is not in effect at this time.

In simpler terms, unless the US Court of Appeals for the First Circuit rejects the stay or ultimately upholds the district court's decision and permits its judgment to be enacted, the government's stance is that the $100,000 fee remains applicable.

$100K H-1B fee and court's decisioon' Experts weighs in

Senthurjothi noted that earlier reports stating otherwise only represented a fleeting moment right after the June 8 ruling. “The statement that ‘the $100,000 fee is currently not being collected’ reflected a short-lived posture immediately after the June 8 ruling and before the June 12 stay. It does not reflect the current procedural status.”

He, however, admitted that the "USCIS continues to issue RFE for $100,000 fee.”

“With the $100,000 H-1B fee still under judicial review, employers should plan for uncertainty rather than assume the fee will disappear. Companies may need to budget for the possibility that the fee remains in place, prioritize business-critical hires, and evaluate alternatives such as cap-exempt H-1Bs, L visas, O visas, or remote workforce models. Existing green card sponsorship strategies should also remain a priority,” she told Ther American Bazaar.

In the current climate of increased examination of work-related visas and outstanding immigration matters, numerous H-1B visa holders throughout the United States have allegedly encountered harassment, which includes racist remarks and unwelcome focus on their businesses and employment situations.

At this time, there are three lawsuits contesting the $100,000 fee associated with the H-1B visa.