A Trump administration initiative to impose $100,000 fees on employers seeking visas for skilled foreign workers amounts to an unlawful tax on those companies and must be voided “in its entirety,” a federal judge ruled on Monday.
The decision by Judge Leo T. Sorokin of the Federal District Court for the District of Massachusetts nullified one of a series of tactics the Trump administration has used to restrict legal immigration, even in fields in which foreign skilled labor helped address severe shortages.
In a 42-page opinion, Judge Sorokin acknowledged that the policy, imposed in September, appeared to step on Congress’s “exclusive power” to levy taxes under the Constitution. He dismissed claims by the Trump administration that the fee was a “regulatory payment” that would have been within the executive branch’s power to set, not a tax.
“This is mere ipse dixit,” he wrote. “Defendants offer no definition for what constitutes ‘a regulatory payment,’ cite no cases or statutes employing the term, and advance no reasoned argument explaining how this term encompasses something different than a tax or a penalty.”
The Trump administration had argued in filings that the H1-B program “has been deliberately exploited to replace, rather than supplement, American workers with lower-paid, lower-skilled labor.” Mr. Trump said the $100,000 fee would incentivize companies to hire more U.S. citizens into high-paying roles.
About 85,000 new visas have been provided annually to hire so-called high-skilled foreign workers at companies through the program’s lottery process. Technology, finance, hospitals and universities have all made ample use of those visas. A variety of companies have said the fee would be prohibitively expensive.
A coalition of 20 states sued to end the policy in December, arguing it was certain to exacerbate shortages of skilled workers including teachers, academic researchers and medical workers.
The ruling came just days after another federal judge similarly voided a policy in which the Trump administration had directed U.S. Citizenship and Immigration Services to freeze applications for work permits and other immigration benefits.
Taylor Rogers, a White House spokeswoman, said that President Trump “has clear legal authority to restrict entry of any class of aliens he determines is not in America’s best interests,” and added that the administration was “confident this order will be reversed on appeal.”
