A Trump administration initiative to impose $100,000 fees on employers seeking visas for skilled foreign workers amounts to an unlawful tax on those companies and must be voided “in its entirety,” a federal judge ruled on Monday.
The decision by Judge Leo T. Sorokin of the Federal District Court for the District of Massachusetts nullified one of a series of tactics the Trump administration has used to restrict legal immigration, even in fields in which foreign skilled labor helped address severe shortages.
In a 42-page opinion, Judge Sorokin acknowledged that the policy, imposed in September, appeared to step on Congress’s “exclusive power” to levy taxes under the Constitution. He dismissed claims by the Trump administration that the fee was a “regulatory payment” that would have been within the executive branch’s power to set, not a tax.
“This is mere ipse dixit,” he wrote, meaning offered without evidence. “Defendants offer no definition for what constitutes ‘a regulatory payment,’ cite no cases or statutes employing the term, and advance no reasoned argument explaining how this term encompasses something different than a tax or a penalty.”
Judge Sorokin wrote that the rule was hastily formulated with no formal process or request for public comment, despite what might have been broad opposition to the rule across many industries that have historically relied on the visa program to fill critical needs.
The Trump administration had argued in filings that the H-1B program “has been deliberately exploited to replace, rather than supplement, American workers with lower-paid, lower-skilled labor.” Mr. Trump said the $100,000 fee would incentivize companies to hire more U.S. citizens into high-paying roles.
About 85,000 new visas have been provided annually to hire so-called high-skilled foreign workers at companies through the program’s lottery process. Technology, finance, hospitals and universities have all made ample use of those visas. A variety of companies have said the fee would be prohibitively expensive, in particular for smaller companies and nonprofit groups that rely on hiring workers from abroad.
A coalition of 20 states sued to end the policy in December, arguing it was certain to exacerbate shortages of skilled workers including teachers, academic researchers and medical workers.
The ruling came nearly six months after Judge Beryl Howell, an Obama appointee, reached the opposite conclusion in a different case, allowing the administration to move forward with the visa fee. She said the administration had the right to impose the fee because under federal immigration law, Congress had given the president “broad authority to regulate entry into the United States for immigrants and nonimmigrants alike.”
But Judge Sorokin, also an Obama appointee, wrote that the Supreme Court has maintained throughout several cases — including one against Mr. Trump’s tariffs and another regarding penalties under the Affordable Care Act — that the president can only impose a tax or penalty when explicitly authorized by Congress.
The visa change was one of several that have appeared designed to take advantage of pressure points to restrict immigration flows and compel foreigners living in the country legally to leave. It fell hardest on highly educated professionals who had seen the program as a comparatively secure route to life in America.
In March, a bipartisan group of lawmakers introduced legislation that would waive the fee for foreign health care professionals, a demographic that has disproportionately helped prop up rural and underserved hospitals that have faced staffing shortages. The measure has not been adopted by either chamber.
Federal judges have repeatedly found that Mr. Trump’s efforts to restrict various immigration programs were at odds with federal immigration law as Congress wrote it.
The ruling on Monday came just days after another federal judge similarly voided a policy in which the Trump administration had directed U.S. Citizenship and Immigration Services to freeze applications for work permits and other immigration benefits.
Taylor Rogers, a White House spokeswoman, said that President Trump “has clear legal authority to restrict entry of any class of aliens he determines is not in America’s best interests,” and added that the administration was “confident this order will be reversed on appeal.” Ms. Rogers cited Judge Howell’s ruling from December as a further sign that the decision on Monday was flawed.
Zach Montague is a Times reporter covering the federal courts, including the legal disputes over the Trump administration’s agenda.
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