By Cyrus D. Mehta and Kaitlyn Field*
The Proclamation banning H-1B staff except a $100,000 price is paid is so blatantly illegal that it rewrites elements of the INA. Nevertheless, a profitable problem to the proclamation – after the Supreme Court docket upheld Trump’s journey ban for nationals of primarily Muslim international locations beneath INA 221(f) in Trump v. Hawaii – shouldn’t be a foregone conclusion. This Proclamation can also be issued pursuant to INA 221(g).
The Proclamation rehashes a lot of the objections to the H-1B visa program which have develop into outdated and appear to solid Indian heritage IT companies in an unfavorable mild. H-1B staff are now not low-cost labor and supply nice worth to US firms, which in flip create extra jobs for US staff. H-1B staff are largely paid six determine salaries. The principles additionally be sure that H-1B staff are paid the upper of the prevailing or precise wage. A courtroom could not problem the President’s rationale behind the proclamation, however a courtroom may nonetheless consider whether or not the imposition of the $100,000 price rewrites H-1B legislation or solely supplants it. It is a whole rewrite of the legislation, and so a courtroom ought to be capable of distinguish this proclamation from Trump vs Hawaii. The president can’t wholesale re-write legal guidelines enacted by Congress, and determine the type of immigrant he prefers over one other primarily based on private whim and prejudice. Trump shouldn’t be a King, and if he likes to be King, he shouldn’t be given unbridled energy to rewrite provisions of the INA that Congress has enacted.
In any other case, it makes a mockery of the separation of powers doctrine, which is a defining function of democracy as a result of it distributes governmental authority amongst three distinct branches – legislative, govt and judicial.
Beforehand too when Trump imposed an identical ban, on October 1, 2020, U.S. District Choose Jeffrey S. White issued a preliminary injunction towards the Trump administration’s June 2020 proclamation that suspended the entry of international nationals on H-1B, L-1, H-2B and most J-1 momentary visas. Choose White dominated the president doesn’t possess a monarch’s energy to solid apart immigration legal guidelines handed by Congress. The order in NAM v. DHS prevented the State Division and Division of Homeland Safety from “partaking in any motion that leads to the non-processing or non-issuance of functions or petitions for visas within the H, J, and L classes which, however for Proclamation 10052, can be eligible for processing and issuance.” See our prior blogs on difficult Trump’s bans beneath INA 221(f) right here and right here, and discussing NAM v. DHS right here.
USCIS Director Edlow’s memo fortunately tamps down the widespread panic that the preliminary Proclamation induced and the $100,000 supplemental price applies to H-1B petitions filed after 12.01 AM ET on September 21, 2025. The specter of litigation and the opposition from company America and universities compelled the Trump administration to again off a bit.
Nevertheless, the Proclamation was poorly drafted and didn’t state that it could apply to petitions filed on or after September 21, 2025 and attorneys needed to do their job to advise shoppers in step with the language of the Proclamation. The steering clearly said that the price would apply to H-1B staff outdoors the US after September 21, 2025. Subsequently, it was disingenuous of the White Home to falsely accuse “company attorneys and others with agendas” for “creating lots of FAKE NEWS round President Trump’s H-1B Proclamation”
Edlow’s memo doesn’t make issues clear in any respect. We have no idea whether or not the Proclamation would apply to H-1B extensions filed after September 21, 2025 for staff who’re outdoors the US and can apply for H-1B visa stamps assuming they have been the topic of accepted H-1B petitions filed earlier than September 21, 2025 whether or not by the identical or a unique employer.
The Edlow memo additionally does nothing for the way forward for the H-1B program. Cap exempt employers who’re universities and nonprofits affiliated with universities or analysis establishments might be hit with the $100,000 price once they file a brand new petition. After subsequent yr’s H-1B lottery alternatives in 2026, employers will have to additionally pay the $100,000 price for any new petition. It will likely be not possible for employers to rent proficient college students from US universities.
The White Home subsequently issued an H-1B FAQ , however it once more creates extra confusion. It states that the Proclamation “requires a $100,000 cost to accompany any new H-1B visa petitions submitted after 12:01 a.m. japanese daylight time on September 21, 2025. This contains the 2026 lottery, and every other H-1B petitions submitted after 12:01 a.m. japanese daylight time on September 21, 2025.” The Proclamation, as a result of it’s primarily based on INA 212(f) which addresses the “entry of any aliens” or of “any class of aliens”, mustn’t apply to somebody contained in the US who’s looking for an extension of keep, and it must also not apply to a change of standing to H-1B within the US, even when the newest White Home steering, which once more is as poorly drafted because the prior clarifications and the Proclamation itself, doesn’t state it. For instance, if one is presently in F-1 standing, the employer applies for this individual within the 2026 H-1B lottery, the case will get chosen and the brand new petition is filed as a change of standing from F-1 to H-1B whereas the individual has at all times been within the US, the $100,000 price beneath the Proclamation ought to arguably not apply. The identical would maintain true if a non-profit cap exempt employer information a brand new H-1B petition after September 21, 2025 and requests the change of standing for a beneficiary from F-1 to H-1B standing.
The imposition of this price will in impact kill the H-1B visa program and can now not appeal to international expertise to the shores of the US. US firms as a substitute may even flee the US in order that they’ll rent this expertise abroad. Trump is in impact has killed the goose that laid the golden eggs by imposing this atrocious price.
*Kaitlyn Field is a Accomplice at Cyrus D. Mehta & Companions PLLC.
