Few US Businesses Have Paid $100,000 Fee to Hire H-1B Workers

Only about 70 employers have paid a $100,000 Trump fee on H-1B workers from outside the US since it was imposed through a September White House proclamation, a government attorney said Thursday.

The low number of payments undermines arguments that the fee is a revenue raising measure that requires explicit Congressional authorization like Trump administration tariffs struck down this month by the US Supreme Court, Department of Justice attorney Tiberius Davis said in a court hearing.

Attorneys for the government and plaintiffs, including a nurse recruiting firm, sparred in an Oakland courtroom over the lawfulness of the $100,000 charge that plaintiffs say has eliminated the specialty occupation visa program for small employers.

That fee was the most restrictive step by the Trump administration so far targeting skilled foreign workers amid a wider immigration crackdown.

The hearing in the US District Court for the Northern District of California case is the second time a court has heard arguments over a challenge to the fee. A federal judge in DC previously denied an injunction in a separate suit brought by the US Chamber of Commerce. That case is now under appeal. A third lawsuit was filed by California and other Democrat-led states in the District of Massachusetts.

Attorneys in the Oakland case and in the Chamber’s appeal at the US Court of Appeals for the DC Circuit have said the recent US Supreme Court decision striking down President Donald Trump’s global tariffs regime bolsters challenges to the H-1B fee. Justices found the Constitution’s framers gave Congress, not the executive, taxing powers.

The small number of fee payers “goes to show it’s not a tax because it’s not raising revenue,” Davis said.

But the Supreme Court has abandoned distinctions between regulatory and revenue raising taxes, said Esther Sung, legal director at Justice Action Center and counsel for plaintiffs challenging the $100,000 fee.

“The Supreme Court has reiterated that when Congress is going to delegate discretionary authority to the executive to impose monetary assessments of any kind, regardless of whether they are characterized as fees or taxes, it has to do so clearly,” she said. “That delegation has to be expressed.”

The justices’ decision in Learning Resources, Inc. v. Trump reinforces that point, Sung said.

The Trump administration has cited authority under the Immigration and Nationality Act to restrict the entry of certain classes of foreign nationals. But Global Nurse Force has argued in its suit that Congress only allowed for immigration fees to cover the cost of administering programs.

Their suit also argued that the fee is arbitrary and capricious and should have observed notice-and-comment procedures under the Administrative Procedure Act.

Davis said Thursday that because the fee was issued through a presidential proclamation rather than an executive order that it’s not subject to APA review.

Judge Haywood S. Gilliam, Jr. didn’t rule on preliminary injunction or class certification motions from plaintiffs, although he denied a government motion to stay proceedings while the separate fee challenge is under appeal at the DC Circuit. He also requested additional briefing from the parties on the impact of the Supreme Court’s tariffs decision.

Plaintiffs are also represented by Cohen Milstein Sellers & Toll PLLC, Kuck Baxter Immigration, LLC, Bless Litigation, Democracy Forward Foundation, and the South Asian American Justice Collaborative.

The case is Global Nurse Force v. Trump, N.D. Cal., No. 4:25-cv-08454, hearing held 2/26/26.