Trump's H-1B visa move comes after congressional inaction

WASHINGTON — President Donald Trump’s proclamation creating a $100,000 fee for the hiring of foreign workers through the H-1B visa program came after years of congressional inaction on the immigration system, a move some experts say exceeds his authority to act without Congress and will likely be challenged in court.

The president’s proclamation said the H-1B program was created to bring temporary workers to the U.S. for high-skilled functions, “but it has been deliberately exploited to replace, rather than supplement, American workers with lower-paid, lower-skilled labor.”

That echoes the concerns of Sens. Charles E. Grassley, R-Iowa, and Richard J. Durbin, D-Ill., who for years put forward bipartisan bills that would, among other changes, place new wage, recruitment, and attestation requirements on employers seeking to hire with those visas.

Their bill, known as the H-1B and L-1 Visa Reform Act, sought to allow the Labor secretary to collect a fee on applications but only to use that money for enforcement. The legislation has not been reintroduced this Congress.

Grassley reproached the business community over concerns about the increased H-1B fees, saying in a social media post Saturday they should have supported congressional efforts for reform when they had the chance.

“I read tech cos &biz groups dislike Trumps $100,000 H1B fee,” Grassley, chair of the Senate Judiciary Committee, wrote Saturday. “If they had not opposed over 10yrs SenDurbin &Grassley H1B reform the abuse Trump is trying 2stop would not hv been prob it is 2day+Trump wld not need 2take action I bet u tech companies now regret oppo 2Grassley-Durbin.”

Sen. Jim Banks had the same wage and jobs concerns in mind when he reintroduced legislation last week that sought to address H-1B visas. The Indiana Republican’s bill calls out Big Tech and seeks to raise the wage floor for H-1B visas from $60,000 to $150,000 and require an employer to pay an H-1B visa holder the greater of the annual wage paid to a U.S. worker for that job.

“Corporations rigged the system to flood the country with cheap foreign labor and drive down wages,” Banks said in a press release. “This bill puts American workers first.”

The president’s authority to implement changes to H-1B visas are in doubt, as both legal experts and members of Congress have signaled the parameters for these visas are limited under the 1952-era Immigration and Nationality Act.

Leaders in industries such as the technology and medical fields say the move would cripple their ability to meet their demanding labor needs, and they could file lawsuits to challenge the proclamation.

Jeff Joseph, president of the American Immigration Lawyers Association, said during a conference call with reporters on Monday that the new fee system “will be litigated” because it goes beyond the authority allocated to the president under the Immigration and Nationality Act, and a U.S. Citizenship and Immigration Services system which is restricted to fees to recover the costs of processing.

“The USCIS system is a user-based system, so when Congress sets those fees, they set it with the idea that this is how much it costs to adjudicate a case,” Joseph said. “In no universe has Congress ever anticipated that an H-1B should cost $100,000, and so it’s a clear violation of what Congress has set out as the purpose and the fees that should be used in the H-1B context.”

Potential challenges

Joseph also criticized the process by which Trump enacted the H-1B proclamation, pointing out it didn’t emanate from the standard process of rule-making that allows for stakeholder input and gives the government an opportunity to address questions about new policy.

“And so we have all these questions that should have been answered through notice and comment, and I anticipate that that’s going to be one of the major reasons why we may see litigation on this at the end of the day,” Joseph added.

Amid confusion about the implementation of the orders, U.S. Customs and Border Protection issued a memo on social media declaring the new H-1B fees will take effect on Sept. 21 and won’t apply retroactively to petitions filed before that date.

But the response from major companies like Amazon, the No. 1 company that has hired with H-1B visas, has been muted.

Ben Johnson, executive director of American Immigration Lawyers Association, said Trump’s move is “absolutely an invitation to litigation,” but downplayed expectations that companies would be the ones responsible even though they are directly impacted.

“I will say, much to my chagrin, unfortunately, I have not heard a significant outcry from major corporations on this, and I don’t know whether they will be one of the litigants,” Johnson said.

Elizabeth Jacobs, director of regulatory affairs and policy for the Center for Immigration Studies, said Monday the Trump administration is signaling that U.S. workers must come first, “but meaningful legislative reform is still urgently needed.”

“For too long, loopholes in the H-1B program have allowed corporations to undercut American workers and depress wages under the guise of a labor shortage,” Jacobs said.

Among the changes Congress can make, Jacobs said in an accompanying analysis, would be a labor market test that would require companies who want to hire on H-1B workers to make a bona fide attempt to hire a U.S. worker before petitioning for a foreign worker.

Additionally, Jacobs said federal law should also require companies to prioritize the retention of their American workforce over temporary nonimmigrant workers when workers must be laid off.

Jacobs also called for the Trump administration to reinstate the rule it finalized at the end of Trump’s first term, which required USCIS to “select the highest-paid H-1B petitions in years where the demand of H-1B workers exceeds the supply of visas.” Jacobs said Congress could also enact the change.

Policy dispute

Trump signaled on Friday upon signing the proclamation the new policy was an attempt to encourage the hiring of American graduates for U.S. universities for high-skilled jobs and national security concerns of hiring foreign workers for industries that engage in sensitive technologies.

“We’re going to be able to keep people in our country that are going to be very productive people, and in many cases, these companies are going to pay a lot of money for that, and they’re very happy about it,” Trump said.

Democrats mostly responded to Trump’s directives with objections over the policy, not his authority to do it.

Rep. Pramila Jayapal of Washington, the top Democrat on the House Judiciary Subcommittee on Immigration Integrity, Security, and Enforcement, said on social media the increased fees for H-1B visas would hamper key industries facing shortages in the labor pool.

“These are visas for skilled workers — doctors, scientists and engineers,” Jayapal wrote. “This move will hurt US innovation and exacerbate an already serious shortage of medical professionals. In what world does this make sense?”