A U.S. District Court last week rejected a request to strike down the Trump administration's $100,000 entry fee for H-1B visa holders.
Summary
- In September, President Trump issued a proclamation recognizing the H-1B visa program’s deleterious effects on American workers and concluding that it was “necessary to impose higher costs on companies seeking to use the H-1B program in order to address the abuse of that program while still permitting companies to hire the best of the best temporary foreign workers.” The proclamation provided that “[p]ursuant to section [212(f)] … of the Immigration and Nationality Act … the entry into the United States of [H-1B] aliens … is restricted, except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000”.
- Section 212(f) provides that “[w]henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens”.
- As the Supreme Court has determined that this provision grants an immense amount of discretionary power to a president, I have previously concluded that President Trump’s H-1B Proclamation had a very strong chance of withstanding federal court scrutiny, especially if it reached the Supreme Court.
- In October, the U.S. Chamber of Commerce asked the U.S. District Court for the District of Columbia to strike down the $100,000 H-1B visa fee.
- H-1B advocates, including the Chamber, have long proclaimed that the visa program provides crucial access to “the best and the brightest” foreign workers. The Chamber stated on its website that “H-1B workers function as complements … for American workers…. Retaining the best and brightest, many of whom trained in highly respected U.S. universities, will help America innovate and compete globally, and that leads to more growth and high paying jobs for all Americans.” Yet, in its lawsuit, the Chamber contended that Congress never intended the H-1B program to be for the “best and brightest”, that “by congressional design, employers need not show that their prospective [H-1B] workers are the best of the best, but merely highly skilled”, that “the imposition of such a ‘best of the best’ requirement … would trample Congress’s duly enacted policy choices” and would “undercut[] the very existence of the [H-1B] program.” The Chamber called “the best and brightest” policy a “misguided” one that would “inflict significant harm on American businesses”.
- On December 23, U.S. District Court Judge Beryl Howell rejected the Chamber’s request for summary judgement against the $100,000 fee, ruling that “Congress has granted the President broad statutory authority, which he has used to issue the [H-1B] Proclamation addressing, in the manner he sees fit, a problem he perceives to be a matter of economic and national security. The Proclamation and its implementation are lawful”.
- Judge Howell’s decision was exceedingly well reasoned. She also displayed admirable judicial restraint, as when she wrote that “[t]he parties’ vigorous debate over the ultimate wisdom of [President Trump’s] political judgment is not within the province of the courts”.
- By the way, Judge Howell was nominated by President Obama. And from 1993 to 2003, she served on the staff and then as general counsel of the U.S. Senate Judiciary Committee, working for U.S. Senator Patrick Leahy (D-Vt.). Judge Howell’s prior partisan employment clearly did not factor into her decision. She has provided a case study in how the judicial system is supposed to work in America.
- I presume that the U.S. Chamber of Commerce’s lawyers concluded that flip-flopping on the Chamber’s “best and brightest” claims would strengthen its legal arguments in this case. But, as I opined in the past, “whether or not the Chamber’s case is strengthened in court, this is going to hand H-1B advocates a loss in the court of public opinion” and “[a]s such, I would consider it political malpractice.” In any event, the Chamber’s flip also flopped in court. Which leads one to ponder whether the Chamber is truly one of the best and brightest trade associations in the land.
Introduction
As I have written, advocates for American workers have long complained that the H-1B temporary visa program for foreign workers in “specialty occupations” has had a devastating impact on American workers. In September, President Trump issued a proclamation that 1) recognized the program’s deleterious effects (having been “deliberately exploited to replace, rather than supplement, American workers with lower-paid, lower-skilled labor”), and 2) concluded it “necessary to impose higher costs on companies seeking to use the H-1B program in order to address the abuse of that program while still permitting companies to hire the best of the best temporary foreign workers.” Consequently, the proclamation provided that “[p]ursuant to section[] 212(f) … of the Immigration and Nationality Act [INA] … the entry into the United States of [H-1B] aliens … is restricted, except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000”.
Section 212(f) provides that “[w]henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens”.
As I have written, in 2018 the Supreme Court concluded in Trump v. Hawaii that President Trump’s § 212(f) proclamation (pejoratively pegged as a “Muslim ban”) “lawfully exercised [his] discretion based on his findings ... that entry of the covered aliens would be detrimental to the national interest” and that “the language of §[ 212](f) is clear, and the Proclamation does not exceed any textual limit on the President’s authority”.
The Supreme Court noted the extraordinary level of discretion that § 212(f) provides to a president:
By its plain language, §[ 212](f) grants the President broad discretion to suspend the entry of aliens into the United States….
[Section 212(f)] exudes deference to the President in every clause.... It is therefore unsurprising that we have previously observed that §[ 212](f) vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA.... ([citing the Court’s 1994 decision in Sale v. U.S., in which it found] it “perfectly clear” that President Reagan could “establish a naval blockade” to prevent illegal migrants from entering the United States).
The Court concluded that the president’s need to justify his findings is quite limited:
- The sole prerequisite set forth in §[ 212](f) is that the President “find[]” that the entry of the covered aliens “would be detrimental to the interests of the United States.”
- Plaintiffs believe that the [Proclamation’s] findings are insufficient…. that [it] fails to provide a persuasive rationale for why nationality alone renders the covered foreign nationals a security risk.
Such arguments are grounded on the premise that §[ 212](f) not only requires the President to make a finding that entry “would be detrimental…” but also to explain that finding with sufficient detail to enable judicial review. That premise is questionable.… But even assuming that some form of review is appropriate, plaintiffs’ attacks on the sufficiency of [President Trump’s] findings cannot be sustained. The 12-page Proclamation — which thoroughly describes the process, agency evaluations, and recommendations underlying the President’s chosen restrictions — is more detailed than any prior order ... under §[ 212](f). [In 1996] President Clinton ... explain[ed] in one sentence why suspending entry of members of the Sudanese government and armed forces “is in the foreign policy interests of the United States”....
[P]laintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. “Whether the President’s chosen method” of addressing perceived risks is justified from a policy perspective is “irrelevant to the scope of his [§ 212(f)] authority” [quoting the Court’s decision in Sale].
The Court emphasized the enhanced deference due to the president in the context of his carrying out his responsibilities regarding immigration, foreign affairs, and national security:
[W]hen the President adopts “a preventive measure ... in the context of international affairs and national security,” he is “not required to conclusively link all of the pieces in the puzzle before [courts] grant weight to [his] empirical conclusions.” [quoting the Court’s 2010 decision in Holder v. Humanitarian Law Project]
“Any rule of constitutional law that would inhibit the flexibility” of the president “to respond to changing world conditions should be adopted only with the greatest caution, and our inquiry into matters of entry and national security is highly constrained.” [quoting the Court’s 1976 decision in Mathews v. Diaz]
Based on the Supreme Court’s decision in Hawaii, I concluded that “President Trump’s use of his § 212(f) power as outlined in his [H-1B] Proclamation has a very strong chance of withstanding federal court scrutiny, especially if it reaches the Supreme Court.”
The U.S. Chamber of Commerce
As I have written, over the three decades I have followed and participated in efforts to reform the H-1B visa program, H-1B advocates have consistently proclaimed that it provides crucial access to “the best and the brightest” foreign workers. Advocates make this claim in the context of lobbying for higher H-1B visa allotments. They also make it to counter longstanding concerns by advocates for American workers that the H-1B program is in large measure used by employers simply to access cheap labor by foreign workers who are far from “the best and the brightest”.
The U.S. Chamber of Commerce has long been ensconced in “the best and the brightest” echo chamber. On August 26, 2019, it published a piece by Jon Baselice, then Vice President for Immigration Policy, stating that:
The simple fact is that other countries are becoming more competitive in their fight for the world’s share of the “best and brightest.” Our policies sorely need updating to ensure that the U.S. maintains and builds upon its stature as the number one destination for the leaders of tomorrow. Congress and the President must update our nation’s legal immigration system to provide more opportunities for international students at U.S. universities to obtain nonimmigrant work visas [primarily H-1B visas] and permanent residency once they graduate. [Emphasis added.]
On October 16, 2025, the Chamber published “H-1B Visas: What You Need to Know”, stating that:
Economic research consistently shows H-1B workers function as complements rather than substitutes for American workers…. Retaining the best and brightest, many of whom trained in highly respected U.S. universities, will help America innovate and compete globally, and that leads to more growth and high paying jobs for all Americans. [Emphasis added.]
Also on October 16, the Chamber published a statement by Neil Bradley, Executive Vice President and Chief Policy Officer, noting that “the Chamber shares” President Trump’s goal “to educate, attract, and retain the world’s best and brightest in the U.S.” (Emphasis added.)
Yet, as I have written, the Chamber asked a federal court to strike down the $100,000 H-1B visa fee, making the astounding argument in its complaint filed with the U.S. District Court for the District of Columbia (given its past pronouncements) that Congress never intended the H-1B program to be for the “best and brightest”, that “by congressional design, employers need not show that their prospective [H-1B] workers are the best of the best, but merely highly skilled”, and that “the imposition of such a ‘best of the best’ requirement … would trample Congress’s duly enacted policy choices” and would “undercut[] the very existence of the [H-1B] program.” The Chamber didn’t even think that H-1B visas should be for “the best and brightest”, arguing that such a “misguided policy” would “inflict significant harm on American businesses”, either by making H-1B workers “practically unavailable for many companies” or by causing a “classic pocketbook injury” by “drastically increas[ing] prospective labor costs” for employers who can pay the fee.
An Admirable Decision
On December 23, U.S. District Court Judge Beryl Howell in Chamber of Commerce v. DHS rejected the Chamber’s request for summary judgement against the $100,000 fee, ruling that:
Congress has granted the President broad statutory authority, which he has used to issue the [H-1B] Proclamation addressing, in the manner he sees fit, a problem he perceives to be a matter of economic and national security. The Proclamation and its implementation are lawful and therefore withstand plaintiffs’ challenges as ultra vires and violative of the [Administrative Procedure Act] APA.
Judge Howell’s decision is exceedingly well reasoned. And she displayed admirable judicial restraint, clearly understanding of the role of the federal judiciary:
- The parties’ vigorous debate over the ultimate wisdom of [President Trump’s] political judgment is not within the province of the courts—so long as the actions dictated by the policy decision and articulated in the Proclamation fit within the confines of the law, the Proclamation must be upheld.
- Regardless of the force of plaintiffs’ arguments and concerns … the relevant analysis focuses on constitutional and statutory powers, not economic policy. After all, the “Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire.” [citing Justice Holmes’ dissent in the Supreme Court’s 1905 decision in Lochner v. New York]. [Emphasis added by Judge Howell.]
Oh, and one more thing – Judge Howell was nominated by President Obama and served from 1993 to 2003 on the staff and then as general counsel of the U.S. Senate Judiciary Committee, working for Senator Patrick Leahy (D-Vt.). Her prior partisan employment clearly did not factor into her decision. Judge Howell has provided a case study in how the judicial system is supposed to work in America.
As to the Proclamation and § 212(f), Judge Howell concluded that:
- A simple comparison of the [H-1B] Proclamation’s textual findings and scope limitations with the requirements of § [212](f) makes clear this presidential action meets the statutory requirements for the authority exercised….
- [T]he Proclamation provides ample support for the clear findings articulated as the basis for the action taken to suspend or impose restrictions on new H-1B visa holders, and this meets the prerequisite for invocation of § [212](f) authority.
As Judge Howell noted, the Plaintiffs argued that:
“[T]he Proclamation does not operate on a valid ‘class of aliens.’”… As plaintiffs read § [212](f), the “class of aliens” contemplated by the statute “encompasses a group of people linked by nationality” or at the very least by “common characteristics or attributes[.]” [quoting the Supreme Court’s decision in Hawaii and Black’s Law Dictionary] … [but instead] the Proclamation covers noncitizens “linked only by the circumstance that their U.S. employers are either unwilling or unable to pay $100,000 to the government to sponsor their immigration status,” and this does not conform to plaintiffs’ definition of “class”.
But she scoffed at the Plaintiffs’ reading of § 212(f):
Th[eir] reading misapprehends the structure of § [212](f), which permits the President to undertake three different actions: he may (1) “suspend the entry of all aliens ... as immigrants or nonimmigrants,” (2) “suspend the entry of ... any class of aliens as immigrant or nonimmigrants” or (3) “impose on the entry of aliens any restrictions he may deem to be appropriate.” The “class of aliens” language appears as part of the object of the preposition relating to the discussion of presidential power to suspend entry whereas no similar language mentioning “class” appears in the portion of the statute discussing presidential power to impose restrictions. In this case, the Proclamation imposes a restriction, a supplemental $100,000 payment obligation on domestic employers, on the entry of certain aliens. After all, the Proclamation literally titles its first section “Restriction on Entry[]” … and goes on to say, “entry into the United States of aliens ... is restricted[.]”… Consequently, plaintiffs’ urging that some form of “class of aliens” must be properly defined for the Proclamation to comply with § [212](f) is untethered to the actual text of the statute. In short, the Proclamation need not define a “class of aliens” as the target of the restrictions set out in the directives to fall within this statutory grant of authority to the President.
Judge Howell concluded that “[r]egardless, even if plaintiffs were correct about the necessity of a defined ‘class of aliens’ under § [212](f), their argument would still fail.” She explained that:
The Supreme Court has previously rejected the challenge that a presidential proclamation improperly defined an “overbroad” class [citing its decision in Hawaii,] reason[ing] that an overbreadth challenge on the class definition “simply amounts to an unspoken tailoring requirement found nowhere in Congress’s grant of authority to suspend entry of not only ‘any class of aliens’ but ‘all aliens.’”…
Indeed, broadly and generally defined classes of aliens in past presidential proclamations have received repeated judicial approval. In 1992, for instance, President H.W. Bush signed Executive Order 12807 … obliging the Coast Guard to “enforce the suspension of the entry of undocumented aliens by sea and the interdiction of any defined vessel carrying such aliens.”… The Supreme Court upheld this executive order in Sale … even though the “class of aliens” only shared the common characteristic of entering the country on certain vessels.
Judge Howell concluded that:
[T]he Proclamation adequately satisfies the preconditions for invocation of presidential authority under § 1182(f) by making an explicit finding about the detriment to the interests of the United States and the resultant “necess[ity]” of and “demand[]” for imposition of the restriction on the entry of certain aliens … and, further, applying the restriction to all nonimmigrant beneficiaries of petitions for new H-1B visas, regardless of whether these aliens constitute a “class of aliens” on terms other than their status as nonimmigrant beneficiaries of new H-1B visas.
The Plaintiffs also asserted that § 212(f) “does not empower the President to impose entry restrictions as a penalty for domestic employers’ alleged misconduct; the detriment to the interests of the United States must instead arise from ‘the entry’ of a ‘class of aliens’.” (Emphasis by plaintiffs.) Judge Howell rejected this contention:
- [J]ust because the President identifies domestic employers as the cause of the problem of American workers being displaced with H-1B workers does not put the [§ 212(f)] remedy beyond his reach … of entry restrictions designed and intended to make H-1B workers more costly…. Congress delegated to the President authority to “impose on the entry of aliens any restrictions he may deem to be appropriate.”… Congress could have, but did not, impose the limit on presidential authority that plaintiffs’ urge. For example, Congress could have added text to § [212](f) that the restrictions the President was authorized to impose could not take the form of a monetary payment or, even more specifically, a monetary payment on domestic employers. Such text is simply not there nor even implied. [Emphasis added by Judge Howell.]
- To be sure … § [212](f) has not been previously invoked to restrict entry into the United States using monetary mechanisms…. Nonetheless, the Supreme Court has held that “§ [212](f) vests the President with ‘ample power’ to impose entry restrictions in addition to those elsewhere enumerated in the INA”.… [citing the Court’s decision in Hawaii] The President … has merely “supplement[ed] the other grounds of inadmissibility in the INA” by requiring a payment before an H-1B petition is processed.
Judge Howell also had the refreshing temerity to criticize the reasoning of a liberal activist ruling by the Ninth Circuit:
[P]laintiffs rely on the same reasoning as that of the Ninth Circuit in Doe #1 v. Trump [in 2020]. In that case, the Ninth Circuit denied “the government’s motion to stay the district court’s preliminary injunction enjoining a Presidential Proclamation restricting family-sponsored immigrants from entering the United States without acquiring specific health insurance,” thereby preventing implementation of the Proclamation at issue … ; in so holding, the court … reason[ed] that the authority granted to the President under § [212](f) “is more circumscribed when he addresses a purely domestic economic issue” since, in the domestic context, “the national security and foreign affairs justifications for policy implementations disappear, and the normal policy-making channels remain the default rules of the game[.]”… As another Judge on this Court persuasively observed regarding this reasoning, however, the distinction between foreign and domestic policy “finds no support in the [§ 212(f)] statutory text” which “simply speaks in terms of restricting entry of aliens ‘detrimental to the United States’” and contains no limitation “to any particular sphere, foreign or domestic.” [quoting Gomez v. Trump] Nor does the Ninth Circuit’s distinction conform to Supreme Court case law which has recognized that “‘[t]he exclusion of aliens is a fundamental act of sovereignty’ that ‘is inherent in the executive power to control the foreign affairs of the nation,’” as well as that “any policy towards aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations.” [quoting Gomez, in turn quoting the Supreme Court’s 1950 decision in United States ex rel. Knauff v. Shaughnessy and 1952 decision in Harisiades v. Shaughnessy] Even if the purported distinction plaintiffs urge were “a practically feasible one, it does not follow that judicial deference is any less” because, as the Supreme Court has explained, entry restrictions may “implicate ‘relations with foreign powers,’ or involve ‘classifications defined in the light of changing political and economic circumstances,’ such judgments ‘are frequently of a character more appropriate to either the Legislature or the Executive.’” [quoting Gomez, in turn quoting the Supreme Court’s decision in Hawaii, in turn quoting the Supreme Court’s 1976 decision in Mathews v. Diaz] [Emphasis of “any policy” added by the court in Gomez court, other emphasis added by Judge Howell.]
As to the $100,000 fee’s impact on H-1B usage, Judge Howell noted Plaintiffs’ argument that:
“[T]he Proclamation [will] fundamentally transform[] the visa category that Congress by statute created[]” … by reducing “the number of petitions far below what Congress provided” with the cap on H-1B visas … and limiting the availability of the H-1B visa program to those domestic employers able to afford the supplemental payment, and to certain types of H-1B workers, who are “the best of the best” when the INA “imposes no such requirement on the H-1B program[.]”
However, as Judge Howell noted in turn:
[P]rotecting American workers against displacement is an underlying congressional policy reason for a cap on the number of H-1B visas awarded annually. The H-1B visa cap sets a number above which “[t]he total number of aliens who may be issued visas ... may not exceed[]” … but the INA is devoid of a requirement or even a goal for a minimum number of such visas to issue.
Here and elsewhere, Judge Howell judiciously employed legislative history. Nice to have a former congressional staffer on the bench!
As to whether the $100,000 fee fits within the INA’s fee structure, Judge Howell noted Plaintiffs’ argument that INA § 286(m), providing “[t]hat fees for providing adjudication and naturalization services may be set at a level that will ensure recovery of the full costs of providing all such services”, “bars presidential action in the form of the supplemental $100,000 payment obligation because Congress has already set the allowable fees[”] and “fees may not be set at a level that bears no relationship whatsoever to relevant costs.”
However, as Howell concluded:
[INA § 286(m)] neither precludes the imposition of other payment obligations, nor cross-references or otherwise bars the President from acting to regulate entry, pursuant to §[ 212](f)….. To start, the statutory text in § [286](m) uses the permissive modal verb “may,” and the Supreme Court “has ‘repeatedly observed’ that ‘the word ‘may’ clearly connoted discretion.’” [quoting the Supreme Court’s 2022 decision in Biden v. Texas, in turn quoting a series of Supreme Court decisions] More to the point, nowhere in § [286](m) is there a prohibition against any executive branch agency creating or collecting other fees related to the H-1B visa program or for payment obligations to be imposed for purposes other than cost-recovery. [Emphasis added by the Supreme Court in Biden.]
Conclusion
As I have written, even if the U.S. Chamber of Commerce believes that the H-1B program not to be for the best and brightest, why would it publicly admit as much? I presumed that the Chamber’s lawyers concluded that flip-flopping on the Chamber’s “best and brightest” claims would strengthen its legal arguments in this case. But, as I opined, “whether or not the Chamber’s case is strengthened in court, this is going to hand H-1B advocates a loss in the court of public opinion” and “[a]s such, I would consider it political malpractice.” In any event, the Chamber’s flip also flopped in court. Which leads one to ponder whether the Chamber is truly one of the best and brightest trade associations in the land.