The H-1B Fee That Has Two Federal Judges at War

On September 19, 2025, President Trump signed Proclamation 10973, imposing a $100,000 payment requirement on employers filing new H-1B visa petitions for workers outside the United States.

Since then, two federal district court judges, both appointed by President Obama, have read the same statute and reviewed the same proclamation and reached diametrically opposite conclusions.

Judge Beryl Howell of the District of Columbia ruled in December 2025 that the proclamation was a lawful exercise of presidential authority under the Immigration and Nationality Act.

Judge Leo Sorokin of the District of Massachusetts ruled in June 2026 that the payment constituted an unconstitutional tax and vacated the policy in its entirety.

At the core of both judges’ rulings lies Section 1182(f): Under federal law, passed by Congress, the President holds broad discretionary authority to suspend or restrict the entry of any class of aliens if it is determined that their entry would be detrimental to the interests of the United States.

These courts sit in different circuits. A circuit split is now in motion, and the Supreme Court will almost certainly have the final word.

Judge Sorokin’s opinion is ambitious and carefully written. However, it rests on several analytical foundations that are weaker than they appear.

The centerpiece of Sorokin’s reasoning is his application of the Supreme Court’s recent decision in Learning Resources v. Trump, which held that the International Emergency Economic Powers Act (IEEPA) did not delegate Congress’s taxing power to the President when he imposed tariffs on imports.

Sorokin borrowed that interpretive framework and applied it to the Immigration and Nationality Act, concluding that the word “restrictions” in Section 1182(f) does not include the power to tax.

The problem in Sorokin’s analysis is that immigration and trade are not the same constitutional domain, and the Supreme Court has never treated them as such.

In Trump v. Hawaii, the Court said that Section 1182(f) “exudes deference to the President in every clause.” That is the kind of language courts use when they are inclined to construe presidential authority broadly.

The entire architecture of Section 1182(f) exists because Congress recognized that it could not respond quickly enough to fast-moving threats involving the entry of foreign nationals. The provision was written with deliberately sweeping, open-ended language. Sorokin never explains why an interpretive method developed in the trade context should govern a statute that the Supreme Court has already described in the most deferential possible terms. That is a significant gap in his analysis.

The tax-versus-restriction question is where Sorokin’s reasoning is most vulnerable to challenge. He concludes that the $100,000 payment is a tax because it raises revenue rather than serving as a punishment for unlawful conduct.

But this conclusion may be circular. Under Trump’s proclamation, filing an H-1B petition for a foreign beneficiary without making the payment is unlawful.

The payment is the condition of lawful entry. A condition of lawful entry is precisely what Section 1182(f) authorizes the President to impose. Its application is limited to foreign nationals seeking to enter the United States. That is a restriction on entry, not a tax in any meaningful constitutional sense.

The most powerful practical argument against Sorokin’s ruling is one that his opinion does not address at all. The $100,000 payment applies only to H-1B beneficiaries who are outside the United States seeking new entry. It does not apply to H-1B workers already in the country seeking extensions or amendments to their status.

If this payment were truly a tax in the constitutional sense, it would apply uniformly to all H-1B petitions regardless of where the beneficiary happens to be standing. Sorokin’s silence on this point is telling.

The USCIS funding structure delivers a further blow to Sorokin’s analysis.

USCIS does not receive funds from congressional appropriations. Congress deliberately designed it to be entirely self-sustaining through visa fees, with the explicit understanding that fees would be set at levels sufficient to cover the agency’s full operating costs.

The notion that an additional fee on H-1B petitions constitutes a constitutional anomaly has no foundation in the actual history of how Congress structured immigration adjudication. Congress has been comfortable with this fee-funded arrangement for decades and has raised no objections.

Premium processing makes this point even sharper. Congress has long authorized USCIS to charge employers substantially higher fees for faster adjudication of cases. Premium processing already creates a tiered fee structure in which different employers pay different amounts for the same underlying benefit, based on their circumstances and preferences.

Sorokin’s implicit premise is inconsistent with a system that already allows USCIS to charge employers based on factors unrelated to the baseline cost of adjudication.

There is also a fundamental asymmetry between this case and the IEEPA tariff context that Sorokin’s opinion does not grapple with. When a tariff is struck down, the remedy is a refund. It is financial, reversible, and administratively clean.

When an immigration policy is struck down mid-implementation, the consequences affect human beings at various stages of visa processing, employment, relocation, and family arrangements.

Workers who were denied entry during enforcement cannot fully recover the career opportunities they lost. Petitions processed without payment during an injunction period create their own complications if the policy is later reinstated. Courts are supposed to weigh these irreversibilities in equity. Sorokin’s opinion vacates the policy in its entirety without engaging with any of them.

Judge Howell saw the practical and legal landscape more clearly. She recognized that the President was operating at the zenith of his authority, that the payment condition fit within the plain language of Section 1182(f), and that the agencies were implementing a lawful directive rather than exercising independent rulemaking power.

The Trump administration is likely to appeal Sorokin’s ruling to the First Circuit Court of Appeals. If it upholds Sorokin, the Supreme Court will face a clean conflict between the DC Circuit and the First Circuit on one of the most consequential immigration law questions in years.

The Court will then have to decide whether a president can impose monetary conditions on the entry of foreign workers, or whether that power belongs exclusively to Congress, which has already spent three decades failing to reform the H-1B program on its own.

The answer, on the law and on the merits, should not be a difficult one.

Rajkamal Rao has been a TIPP Insights columnist and member of the Editorial Board for over four years. He also publishes on Substack, with all of his work available for free. Readers may subscribe to get new articles sent straight to their inbox.