A federal appeals court refused Friday to stop enforcement of a lower court ruling that struck down the Trump administration's $100,000 fee on new H-1B visas for skilled foreign workers.
The First Circuit Court of Appeals in Boston upheld a June decision that found the fee constituted an unlawful tax never authorized by Congress. The three-judge panel, composed entirely of appointees of Democratic presidents, concluded the administration failed to demonstrate it would likely prevail on appeal in defending the fee's legality.
Trump issued a proclamation in September imposing the new charge on H-1B visa applications, a program that allocates 65,000 visas annually for foreign workers, plus an additional 20,000 for those holding advanced degrees. Before the fee was introduced, employers typically paid between $2,000 and $5,000 in associated costs.
The administration justified the dramatic increase by arguing the H-1B program had been "deliberately exploited to replace, rather than supplement, American workers with lower-paid, lower-skilled labor." The fee has not applied to visa holders who were already in the United States on student visas, a category that represents a significant share of new H-1B recipients.
Tech companies depend heavily on the H-1B program to recruit international talent. Since the fee took effect, few employers have actually paid it, suggesting limited adoption of the visa category under the new cost structure.
The lawsuit challenging the fee was brought by 20 Democratic state attorneys general. The Trump administration did not immediately respond to requests for comment on the appeals court decision.
Author James Rodriguez: "The court's unwillingness even to pause the lower ruling shows how weak the administration's legal footing is on this one."
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