Trump’s $100,000 H-1B visa fee struck down: For Indian professionals, why some damage may already have been done

The ruling, which blocks this change, is particularly significant for Indians who account for the overwhelming majority of H-1B beneficiaries every year. The Indian Express spoke to a former US immigration official as well as immigration attorneys to understand how the increased fee affected foreign workers and how the latest court ruling may not be the final word on the matter.

What is the H-1B programme and how did the fee affect it?

The H-1B visa allows US employers to hire foreign nationals in specific occupations or roles that require at a minimum a bachelor’s degree and a body of specialised knowledge. Congress has capped approvals at 65,000 per year for most private employers, with an additional 20,000 for holders of advanced degrees. Universities, nonprofit research organisations and government research bodies are exempt from this cap and can file petitions at any time.

Before the $100,000 proclamation, the petition fees ranged from $960 to $7,595. Trump signed the proclamation in September 2025, citing concerns that the programme had been used to replace American workers with foreign labour at lower wages, particularly in STEM (Science, Technology, Engineering and Mathematics) fields. The issue also held political resonance for a section of Trump supporters.

Why did the court strike down the fee?

According to the ruling, the central question was whether the $100,000 payment was a legitimate immigration penalty or an unlawful tax.

Judge Sorokin concluded that the fee functioned as a tax regardless of what the administration chose to call it. Because the US Constitution grants Congress, not the President, the authority to levy taxes, the court held that the measure exceeded executive power.

Robert Bray, a retired Immigration Officer with the United States Citizenship and Immigration Services (USCIS) Fraud Detection and National Security division, told The Indian Express that the judge’s reasoning was heavily influenced by a recent Supreme Court decision involving tariffs.

“As I read the ruling, the court used the recent Supreme Court case Learning Resources to infer that the $100,000 fee was comparable to a tariff and thus defined the fee as a tax,” Bray said.

According to Bray, once the court characterised the payment as a tax, much of the government’s legal defence collapsed. “This essentially negated almost all of the government’s arguments to defend the $100,000 fee,” he said.

Bray added that while the administration may have had policy reasons for wanting to discourage foreign hiring, the legal foundation behind the measure appeared weak.

Why is the ruling important for Indians?

Indian citizens receive more than 70% of all H-1B visas issued annually and dominate the technology, engineering, healthcare and consulting sectors that rely heavily on the programme.

Washington DC-based immigration attorney Rajiv Khanna told The Indian Express that the ruling restores predictability to a system that many workers felt had become increasingly unstable.

“The decision is significant for Indians and for everyone else who has an H-1B or aspires to have an H-1B,” Khanna said. “There is a system in place and that system cannot be disturbed at the whim or fancy of a government that decides matters without any empirical evidence of what will work, what will not work, and what they are trying to correct,” he said.

He also described the judgment as a reminder that the US remains governed by legal checks and balances.

Has the fee already affected Indian workers?

While the court ruling is being celebrated by many immigration advocates, some lawyers say damage may already have been done.

Asel Williams, a founding immigration attorney at New York City-based Williams Law, told The Indian Express: “Indian professionals on H-1B and STEM OPT status have already felt the impact of the $100,000 H-1B fee introduced last year.”

OPT, or Optional Practical Training, allows international students on F-1 visas to work in the US after graduation in jobs related to their field of study. Students can generally work for 12 months under regular OPT, while STEM graduates receive an additional 24-month extension.

According to her, many employers became reluctant to sponsor foreign workers once the fee was announced. “Fewer companies are willing to sponsor Indian nationals, terminations are rising, and I am receiving a growing number of inquiries from laid-off H-1B holders with only 60 days to secure new employment,” she said.

Williams argued that immigration restrictions have coincided with broader technological disruptions in the labour market. “These layoffs are being driven by a combination of AI displacement and increasingly restrictive H-1B policies. The damage to Indian H-1B holders and STEM OPT workers has in large part already been done,” she said.

Similarly, Bray noted that the fee appeared to suppress demand for new H-1B sponsorships. “The number of H-1Bs originating in other countries was reduced exponentially,” he said.

How did the fee affect employers?

The administration had argued that the fee would discourage overreliance on foreign labour and encourage employers to hire Americans.

However, immigration attorneys say the practical effect was to create substantial barriers for businesses that depend on highly skilled workers.

Khanna said the fee created significant problems for companies that routinely move personnel into the US for specialised projects.

“The $100,000 fee had definitely created a huge barrier,” he said. “Larger companies doing project work could not bring their employees onshore and that was one of the biggest problems.”

The consequences were particularly severe for workers who had already obtained H-1B status but later lost their jobs. “For people who got laid off on an H-1B and had to leave the US to come back, they would have had to pay $100,000,” Khanna said. “That was one of the biggest pain points.”

“In critical sectors like healthcare and academia, people were having a lot of difficulty because there were no waivers available,” he added.

Could this case create a broader precedent?

The most important aspect of the case may not be the H-1B programme itself but the legal reasoning underlying the judgment.

Bray described the ruling as potentially precedent-setting because it limits how future administrations can impose immigration-related charges without congressional approval.

“The fact that the judge used the Supreme Court decision on tariffs to make a determination that this fee is actually a tax is a huge precedent-setting decision and certainly needs to be settled,” he said.

The US Congress retains the authority to enact immigration-related taxes or fees through legislation. “Congress can always pass legislation imposing a fee or tax,” Bray added.

However, Khanna believes the current political climate makes major immigration legislation unlikely. “Passing laws is very difficult, especially passing laws or legislative corrections to immigration issues,” he said. With midterm elections approaching, lawmakers may be reluctant to support measures that could be portrayed as either anti-immigration or pro-immigration.

What should H-1B holders watch for now?

Despite the ruling, experts are advising caution.

A legal challenge from the government is expected. Bray believes the dispute may ultimately reach the Supreme Court because of the broader constitutional questions involved. “My feeling is that it will go to the Supreme Court mainly to deal with the court calling the fee a tax,” he said.

Khanna explained that the administration generally has about 30 days to file an appeal and could simultaneously seek a stay of the judgment.

“If they tack on a stay request or an interim stay request, they could get a hearing within a couple of weeks, sometimes even earlier,” he said. “If the stay is granted, then this ruling does not come into effect until the appeal is decided, which can take a few months.”

Williams urged foreign workers to avoid assuming that the court decision resolves broader immigration uncertainties. “I recommend that H-1B holders avoid international travel,” she said.

“The recent court ruling does not automatically make it easier to obtain an H-1B visa through consular processing. Both the US Department of State and DHS retain discretion to deny any H-1B petition,” Williams added.

With inputs from Amaal Sheikh