President Donald Trump’s administration on Monday released a proposed regulation to codify an unprecedented fee of more than $100,000 on new H-1B visas for highly skilled foreign workers that has been blocked by the courts.
The fee, first temporarily imposed by Trump last year,dramatically raises the cost of visas that are heavily relied on in the tech, education and research sectors.
A federal judge in June ruled that the fee was illegal and blocked the Trump administration from collecting it. A Boston-based appeals court is reviewing that decision while a different court considers whether a judge properly rejected a challenge to the fee by a major business group.
Trump’s temporary fee increase expires in September, one year after it was issued. The proposed rule by the U.S. Department of Homeland Security, posted in the Federal Register on Monday, would make a fee of $103,265 permanent. It could be finalized by the end of the year.
The H-1B program allows U.S. employers to hire foreign workers with training in specialty fields and offers 65,000 visas annually, with another 20,000 for workers with advanced degrees, approved for three to six years. Those visas typically came with fees between $2,000 and $5,000 before Trump’s order.
The fee would not apply to visas granted to foreign citizens already in the United States on student visas, who make up a large share of new H-1B recipients, or to renewals of current visas.
DEBATE OVER VISA PROGRAM
Trump, a Republican, and other critics of the H-1B program say it is abused by many companies who replace American workers with cheaper foreign labor. But business groups and many individual companies have said the visa program is needed to address a lack of qualified American workers for some jobs and to allow U.S. businesses to recruit top talent.
About 70 employers had paid the $100,000 fee on a total of 85 visa applications as of late February, according to court filings.
In imposing the fee, Trump invoked the president’s power under immigration law to restrict the entry of certain foreign nationals who would be detrimental to U.S. interests.
The fee is being challenged by the U.S. Chamber of Commerce, the largest U.S. business lobbying group, Democratic-led states and a coalition of unions and employers. Those lawsuits could be amended to challenge the rule proposed this week once it is finalized.
LEGAL CHALLENGES MOUNT
The lawsuits claim that Trump’s power to restrict entry does not allow him to override the law that created the H-1B visa program. The states and groups that sued also say that the Homeland Security Department cannot impose fees, taxes or other means to generate revenue for the United States without permission from Congress.