The Trump administration hit back Monday at the U.S. Chamber of Commerce's lawsuit challenging the new $100,000 H-1B visa fee for skilled foreign workers, telling a D.C. federal judge that no avenue exists for the suit to proceed.
A presidential proclamation that enacted the new payment requirement in September is shielded from judicial review and falls squarely in line with the "sweeping" powers Congress gave the president to restrict people's ability to enter the country under the Immigration and Nationality Act, the U.S. Department of Justice said in a summary judgment motion.
Principles of consular nonreviewability, which largely bar federal courts from reviewing decisions to allow or deny foreign nationals' entry into the country, also bar challenges to President Donald Trump's proclamation, the DOJ said.
"While courts have often characterized the doctrine in the context of consular officials' decisions, the same separation-of-powers principles apply to determinations by other executive officials. Since plaintiffs are challenging the executive's admission decisions, such claims are nonreviewable," the DOJ said.
The U.S. Chamber of Commerce filed suit in October, aiming to have the payment requirement blocked. It was later joined by the Association of American Universities.
The industry groups allege that the president's decision to jack H-1B visa costs from $3,600 up to $100,000 runs afoul of the Administrative Procedure Act and other federal laws and threatens to impose significant harm on businesses and institutions.
The DOJ, however, argued the presidential proclamation and any federal agency actions that have been undertaken to implement it are not subject to judicial review under the APA.
Even if they were, the DOJ said, the proclamation and the payment requirement were clearly authorized under sections of the INA that allow the president to prevent people from entering the country or impose restrictions upon their entry.
"The Supreme Court has repeatedly confirmed that this authority is 'sweeping,' subject only to the requirement that the president identify a class of aliens and articulate a facially legitimate reason for their exclusion. The proclamation here readily satisfies that standard," the DOJ told the court.
The DOJ said Trump issued the proclamation after finding that companies have abused the H-1B visa program, using it to tap lower-paid foreign workers to fill entry-level jobs that could be filled by American workers.
It hit back against claims that the $100,000 payment requirement, which the proclamation put in place for one year, violates statutory provisions that limit visa fees to the recovery of visa application processing costs.
According to the DOJ, the new payment requirement is not a "fee" that's intended to help recover visa application processing costs but a restriction on entry that's meant to discourage companies from relying on foreign workers in ways that undercut domestic wages and opportunities for American workers.
Even if the payment requirement was to be considered a fee, however, the DOJ said federal statutes do not limit such fees to cost recovery or prohibit the requirement of additional fees or payments.
The DOJ also challenged assertions that the presidential proclamation transformed the H-1B program contrary to the Immigration and Nationality Act, arguing that Congress never intended for the H-1B program to be used to help companies fill entry-level jobs that could go to American workers.
"Yet, the president found that hiring aliens as H-1B nonimmigrants for entry-level jobs has become rampant, while Americans go unhired. As a result, the president imposed an entry restriction that supplements the restrictions of the INA, in accordance with his authority under § 1182(f), to address this detriment to the national interest," the DOJ argued.
"If anything, the restriction better aligns current practice with the purpose of H-1B to ensure only highly specialized aliens with 'theoretical and practical application of a body of highly specialized knowledge' that cannot otherwise be found in America are permitted entry," the DOJ said. "Plaintiffs' policy disagreement is not a basis to enjoin or vacate the proclamation."
Representatives for the DOJ and AAU declined to comment on Tuesday. The Chamber did not immediately respond to a request for comment.
The Chamber is represented by Paul W. Hughes, Sarah P. Hogarth, Mary H. Schnoor, Grace Wallack, Alex Boota and Emmett Witkovsky-Eldred of McDermott Will & Schulte LLP and its own Daryl L. Joseffer.
The AAU is represented by Adam G. Unikowsky, Elizabeth Henthorne, Ishan K. Bhabha, Lindsay C. Harrison and Zachary C. Schauf of Jenner & Block LLP.
The government is represented by Drew C. Ensign, August Flentje, Tiberius Davis, Glenn Girdharry and Alexandra McTague of the U.S. Department of Justice's Civil Division.
The case is Chamber of Commerce of the United States et al. v. U.S. Department of Homeland Security et al., case number 1:25-cv-03675, in the U.S. District Court for the District of Columbia.
Dec 2
Deal Summary
