Solely about 70 employers have paid a $100,000 Trump payment on H-1B employees from exterior the US because it was imposed via a September White Home proclamation, a authorities legal professional mentioned Thursday.
The low variety of funds undermines arguments that the payment is a income elevating measure that requires specific Congressional authorization like Trump administration tariffs struck down this month by the US Supreme Courtroom, Division of Justice legal professional Tiberius Davis mentioned in a court docket listening to.
Attorneys for the federal government and plaintiffs, together with a nurse recruiting agency, sparred in an Oakland courtroom over the lawfulness of the $100,000 cost that plaintiffs say has eradicated the specialty occupation visa program for small employers.
That payment was probably the most restrictive step by the Trump administration to date concentrating on expert overseas employees amid a wider immigration crackdown.
The listening to within the US District Courtroom for the Northern District of California case is the second time a court docket has heard arguments over a problem to the payment. A federal choose in DC beforehand denied an injunction in a separate swimsuit introduced by the US Chamber of Commerce. That case is now below enchantment. A 3rd lawsuit was filed by California and different Democrat-led states within the District of Massachusetts.
Attorneys within the Oakland case and within the Chamber’s enchantment on the US Courtroom of Appeals for the DC Circuit have mentioned the current US Supreme Courtroom determination putting down President Donald Trump’s international tariffs regime bolsters challenges to the H-1B payment. Justices discovered the Structure’s framers gave Congress, not the manager, taxing powers.
The small variety of payment payers “goes to indicate it’s not a tax as a result of it’s not elevating income,” Davis mentioned.
However the Supreme Courtroom has deserted distinctions between regulatory and income elevating taxes, mentioned Esther Sung, authorized director at Justice Motion Heart and counsel for plaintiffs difficult the $100,000 payment.
“The Supreme Courtroom has reiterated that when Congress goes to delegate discretionary authority to the manager to impose financial assessments of any variety, no matter whether or not they’re characterised as charges or taxes, it has to take action clearly,” she mentioned. “That delegation must be expressed.”
The justices’ determination in Studying Assets, Inc. v. Trump reinforces that time, Sung mentioned.
The Trump administration has cited authority below the Immigration and Nationality Act to limit the entry of sure courses of overseas nationals. However World Nurse Drive has argued in its swimsuit that Congress solely allowed for immigration charges to cowl the price of administering applications.
Their swimsuit additionally argued that the payment is unfair and capricious and may have noticed notice-and-comment procedures below the Administrative Process Act.
Davis mentioned Thursday that as a result of the payment was issued via a presidential proclamation quite than an government order that it’s not topic to APA overview.
Choose Haywood S. Gilliam, Jr. didn’t rule on preliminary injunction or class certification motions from plaintiffs, though he denied a authorities movement to remain proceedings whereas the separate payment problem is below enchantment on the DC Circuit. He additionally requested further briefing from the events on the impression of the Supreme Courtroom’s tariffs determination.
Plaintiffs are additionally represented by Cohen Milstein Sellers & Toll PLLC, Kuck Baxter Immigration, LLC, Bless Litigation, Democracy Ahead Basis, and the South Asian American Justice Collaborative.
The case is World Nurse Drive v. Trump, N.D. Cal., No. 4:25-cv-08454, listening to held 2/26/26.
