Washington sues over Trump administration’s unlawful new $100K fee for H-1B visa

Attorney General Nick Brown on Friday joined a coalition of 20 states in suing the Trump administration over its unlawful policy imposing a $100,000 fee on new H-1B visa petitions. The H-1B visa program allows employers to petition for high-skilled foreign workers to temporarily fill positions in specialty occupations, including physicians, researchers, nurses, and other vital workers, in order to alleviate nationwide labor shortages.

“The H-1B visa program helps bring talented people with critical skillsets to Washington, keeping our state on the cutting edge in highly specialized areas of education and research,” said Brown. “The federal government can’t arbitrarily turn these visas into an extortion racket to punish employers and institutions the President does not like.”

Nearly 500 H-1B visa holders are employed across more than 30 of Washington’s state agencies, public universities, and public colleges. Previously, employers would pay between $960 to $7,595 in regulatory and statutory fees for H-1B visas and the significantly higher fee for new H-1B applications would have a major impact in Washington, particularly in higher education. State colleges and universities would be on the hook for these onerous fees for any new H-1B visa petitions. As a result, they may not be able to meet requirements for some areas and programs. Planned courses will be cancelled. Laboratories will sit empty. Scientific breakthroughs will be made somewhere else. These institutions will lose their competitive edge, particularly in the areas of artificial intelligence, cybersecurity, and medical fields, which would likely to translate to a loss of student applicants for educational programs. These costs would be particularly difficult to absorb now, as Washington faces a budget shortfall.

Congress has continually tailored the H-1B visa program to carry out its purpose of meeting employers’ labor needs, while protecting the interests of American workers to ensure that they are not wrongfully displaced. Congress has repeatedly enhanced enforcement and increased penalties to prevent misuse of the program.

In implementing the new H1B visa policy, the Department of Homeland Security gave the Secretary of Homeland Security broad discretion to determine which petitions are subject to the fee or qualify for an exemption, raising concerns that the enforcement could be applied selectively against employers the Trump administration does not like. 

In Friday’s lawsuit, Brown and the coalition allege that the Trump Administration’s H-1B visa fee violates the Administrative Procedure Act (APA) and the U.S. Constitution. In the past, DHS set fees associated with H-1B visas using the APA’s notice-and-comment process pursuant to congressional authority, which limits fees to the amount necessary to sustain the agency’s work. The coalition argues that the $100,000 fee was set arbitrarily and not based on the agency’s costs. Additionally, the Trump Administration issued the fee without going through the notice-and-comment process required by the APA and without considering the full range of impacts — especially on the provision of critical services by government and nonprofit entities.

Joining Brown in the lawsuit, which is led by California Attorney General Rob Bonta and Massachusetts Attorney General Andrea Campbell, are the attorneys general of Arizona, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Michigan, Minnesota, North Carolina, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, and Wisconsin.

A copy of the complaint is available here.