Only a small number of U. S. businesses have paid the $100,000 fee imposed on H-1B visas by a Trump-era presidential proclamation, a development that could reshape ongoing legal challenges over the program that brings skilled foreign workers to the United States. The revelation came during a court hearing Thursday in Oakland, California, highlighting how few employers have actually taken on the costly surcharge since it was introduced.
According to government attorney Tiberius Davis, just about 70 employers have paid the fee, which was introduced as part of the Trump administration’s crackdown on skilled immigration. “The small number of fee payers goes to show it’s not a tax because it’s not raising revenue,” Davis told the court, as reported by Bloomberg Law.
The low uptake undercuts arguments that the fee functions as a revenue-generating measure requiring explicit Congressional authorization, similar to tariffs recently struck down by the U.S. Supreme Court. Legal experts say the comparison is central to ongoing litigation challenging the fee’s constitutionality.
The $100,000 fee has emerged as a major hurdle for smaller U.S.
businesses seeking to hire foreign talent. Attorneys for plaintiffs in the Oakland case, which includes Global Nurse Force, argued that the surcharge has effectively eliminated the H-1B specialty occupation visa program for many small employers.
“The fee is arbitrary and capricious,” said Esther Sung, legal director at Justice Action Center, who represents the plaintiffs. She added that the administration should have followed notice-and-comment procedures under the Administrative Procedure Act. Sung also cited the recent Supreme Court decision in Learning Resources, Inc. v. Trump, which emphasized that Congress, not the executive branch, holds the power to impose monetary assessments.
The Trump administration, however, has defended the fee by citing authority under the Immigration and Nationality Act, which allows restrictions on certain classes of foreign nationals. Government attorneys argued that because the fee was issued via a presidential proclamation rather than an executive order, it falls outside the scope of APA review.
The ongoing litigation is further influenced by the Supreme Court’s recent decision invalidating parts of President Trump’s global tariff regime. Attorneys on both sides of the H-1B fee challenge have pointed to this ruling to argue about the executive branch’s authority to impose the fee.
Plaintiffs’ counsel argue that the decision reinforces the principle that discretionary monetary powers must be explicitly delegated by Congress. Government attorneys, meanwhile, maintain that the fee’s minimal uptake suggests it does not function as a tax and therefore does not require congressional approval.
Judge Haywood S. Gilliam, Jr., presiding over the Oakland case, did not rule on preliminary injunction or class certification motions during Thursday’s hearing but denied a government request to stay proceedings while a separate fee challenge is under appeal at the D.C. Circuit. The judge also requested additional briefing on the Supreme Court’s tariff decision’s impact on the case.
The $100,000 fee represents the most restrictive action by the Trump administration against skilled foreign workers, part of a broader effort to tighten immigration. While the program was intended to allow U.S. companies access to global talent, the high cost has deterred many employers, particularly smaller firms, from sponsoring H-1B visas.
The case, Global Nurse Force v. Trump, No. 4:25-cv-08454, is being closely watched for its potential to set precedent on executive authority in immigration policy and its financial implications for U.S. employers relying on specialized foreign labor. Plaintiffs are represented by Cohen Milstein Sellers & Toll PLLC, Kuck Baxter Immigration, Bless Litigation, Democracy Forward Foundation, and the South Asian American Justice Collaborative.
The outcome of this legal challenge could redefine the H-1B visa landscape, particularly for small businesses seeking to compete in the U.S. economy’s high-skill sectors. As Bloomberg Law reports, the number of employers paying the fee remains strikingly low, underscoring the program’s limited practical reach and fueling ongoing debates about the executive branch’s powers in immigration and taxation.
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