DC Judge Probes Presidential Powers in First Test of H-1B Fee

A DC federal judge pressed attorneys for the US Chamber of Commerce and others challenging a $100,000 fee for workers on H-1B visas on how they can overcome statutory language giving presidents broad authority to set limits on entry to the US.

Immigration and Nationality Act provisions granting executive power to set US entry restrictions offer “a bit of a hurdle” to finding the fee unlawful, said Judge Beryl A. Howell.

“Is that a problem where Congress needs to take another look?” asked Howell, an Obama appointee to the US District Court for the District of Columbia.

The Friday hearing was the first time the government squared off in court with challengers to President Donald Trump’s $100,000 fee for workers on H-1B visas. The Chamber and the Association of American Universities, a coalition of top research institutions, are leading one of three separate lawsuits against the fee.

Their case hinges largely on what authority is granted to the president under INA sections 212(f) and 215(a), which the Trump administration has wielded to impose the new costs. But those provisions have never been used to impose a fee or to regulate the activities of domestic US businesses, said Zach Schauf, a partner at Jenner & Block and counsel for the AAU.

“This is a case about fees. That is a core power of Congress,” he said.

The Sept. 19 presidential proclamation adding the $100,000 fee is the Trump administration’s most disruptive measure yet to restrict employment-based immigration.

The proclamation shocked the business world and has wrought havoc on hiring plans of healthcare providers, universities, and schools who can’t absorb the new costs. For private employers, including the tech firms that are among the biggest users of the H-1B program, the fee will kick in next spring after an annual lottery for the visas. But steep new costs stemming from the charge are expected to reshape use of the specialty occupation visa program even if courts weigh in soon.

Lawmakers have set specific costs for the program. But Trump has unilaterally issued charges 25 times that amount without seeking new authority from Congress, said Paul Hughes, a partner at McDermott Will & Schulte and counsel for the Chamber.

“This is a lobbying question for the president,” he said.

But Tiberius Davis, an attorney for the government, said lawmakers didn’t preclude the executive from adding other costs on users of the program.

“Those fees are not being displaced—and they don’t exclude others,” he said.

A separate lawsuit against the fee was filed earlier this month in Boston by a coalition of states including California and Massachusetts. Plaintiffs in a third challenge brought in San Francisco filed a motion for a preliminary injunction Thursday.

The Chamber is represented by the US Chamber Litigation Center and McDermott Will & Schulte. The AAU is represented by Jenner & Block LLP. The government is represented by the Department of Justice.

The case is Chamber of Commerce of the United States v. US Dep’t of Homeland Security, D.D.C., No 25-cv-03675, motion hearing 12/19/25.