U.S. District Judge Leo Sorokin in Boston ruled that the $100,000 fee on new H-1B visa petitions is an unlawful tax. The Constitution reserves taxing power to Congress. The president cannot impose one by proclamation.
The fee took effect September 21, 2025, under Presidential Proclamation 10973. Standard H-1B filing fees ran $2,000 to $5,000. The $100,000 surcharge increased the cost by 20 to 50 times.
Twenty state attorneys general, led by California, sued. They argued the fee blocked hospitals from hiring doctors, school districts from recruiting teachers, and universities from filling research positions. Rural hospitals were hit hardest — they compete for a smaller pool of specialists willing to work outside major cities.
By February 2026, only 85 payments had been processed. By June 2026, DHS Secretary testified that over 200,000 applicants had paid. The fee was scheduled to expire in September 2026.
Judge Sorokin wrote that “the substance and application of the $100,000 payment reveal that it is a tax, regardless of what the payment is called.” The fee raised revenue. It did not cover the cost of processing an application. That makes it a tax, and only Congress can impose taxes.
A separate federal judge in Washington, D.C. had upheld the same fee in December 2025. The conflicting rulings will likely reach an appeals court.
The administration said it would appeal.
Three out of four H-1B visas go to workers from India. The program fills positions where American workers are not available — surgeons in rural Montana, computer science professors at state universities, engineers at defense contractors. The fee did not create American jobs. It created vacancies.
What you can do now
- Track the appeal. The conflicting rulings (Boston struck down, D.C. upheld) will likely consolidate at the appeals court level.
- If your employer or institution was affected, document the impact. States building the legal record need specific examples of positions unfilled, patients untreated, classes unstaffed.
- Contact your representative about legislative fixes. Congress could clarify that visa fees must cover processing costs, not function as revenue tools.