Less than nine months after it took effect, the Trump administration’s eye-watering US$100,000 surcharge on new H-1B petitions has been struck down. In a June 8 opinion updated and analysed by practitioners on June 12, the U.S. District Court for Massachusetts ruled that the surcharge—created by Presidential Proclamation 10973—amounted to a tax that only Congress may levy. Judge Leo T. Sorokin found the implementing agency memoranda and web guidance to be “legislative rules” issued without the required notice-and-comment process, and therefore invalid under the Administrative Procedure Act. Because the court vacated the underlying actions, USCIS may not collect the fee from any employer unless a higher court issues a stay. Immigration lawyers report that filings submitted since June 8 have been accepted with the standard base filing and fraud-prevention fees only. The decision is a major win for sectors such as healthcare, higher education and construction that rely on H-1B professionals but could not absorb six-figure upfront costs. It also removes a budgeting wild card just weeks before USCIS opens the FY 2027 cap-season re-registration in July. Employers should monitor the government’s expected appeal and be prepared for possible retroactive payment demands if the ruling is overturned. For now, however, previously delayed consular processing cases and new in-country petitions can move ahead without the additional US$100,000 outlay.
Source: The Visa Wire
