What legal grounds do challengers cite against Trump’s new H-1B fee?

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Challengers Cite Lack of Authority and Arbitrary Fee Structure Against New H-1B Visa Policy

Legal challenges against President Donald Trump's US$100,000 fee for new H-1B visas are highly probable, with opponents likely to argue that the President exceeded his authority and that the fee itself is unlawfully arbitrary. These challenges could centre on the assertion that the fee is excessively high, rendering it unlawful, and that the relevant government agencies may have failed to adhere to established rulemaking procedures. The lack of explicit guidance on certain applications of the fee, such as its impact on current visa holders changing employers or the payment mechanisms, could further strengthen claims that the policy is arbitrary and undermines the legislative framework established by Congress.
Allegations of Exceeding Presidential Authority

A primary legal ground for challenging the new H-1B visa fee is the assertion that President Trump lacks the requisite authority to unilaterally impose such a policy. Federal immigration law grants the U.S. Citizenship and Immigration Services (USCIS) the power to collect fees, but these are generally limited to covering the administrative costs of the program. Critics argue that the President cannot independently introduce additional fees beyond those authorised by Congress and that USCIS typically adjusts the existing fee structure through formal regulatory processes, not executive action.
Claims of Arbitrary and Unlawful Fee Structure

Challengers are expected to contend that the US$100,000 fee is arbitrarily high, thereby making it unlawful. The existing fee structure for H-1B visas, which typically ranges from US$2,000 to US$5,000, was established by Congress and is periodically reviewed. The significant increase proposed by the new order, without a clear justification tied to administrative costs, could be presented as evidence of arbitrariness.
Procedural Deficiencies in Rulemaking

Furthermore, legal opponents may accuse USCIS and the State Department of failing to follow proper rulemaking procedures. This could involve claims that the agencies did not adequately estimate the costs associated with the new regulation or solicit and respond to public comments, which are standard requirements for new regulations. Such procedural omissions could provide grounds for invalidating the policy.
Ambiguity Bolstering Arbitrary Claims

The absence of clarity regarding specific aspects of the US$100,000 fee could also be leveraged by challengers. Questions concerning its application to current H-1B visa holders who switch employers, or the precise method for making these payments, could be used to support arguments that the policy is arbitrary and disrupts the system Congress designed. This lack of defined parameters may weaken the administration's defence of the policy.

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What legal grounds do challengers cite against Trump’s new H-1B fee?

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