DHS Says Trump H-1B Fee Isn’t a Tax, Should Continue on Appeal

A federal judge’s order blocking a $100,000 fee for H-1B visas was wrong to determine the fee is an unauthorized tax and should be stayed pending appeal, the Department of Homeland Security told an appeals court in Boston.

The fee that President Donald Trump imposed to restrict the flow of H-1B visas falls within his broad authority under federal immigration law, the department said in its Thursday filing to the US Court of Appeals for the First Circuit.

The one-time application fee isn’t properly considered a tax, but the president would have proper authority to order it even if it were a tax, the government argued.

The visa fee is one part of the Trump administration’s broader efforts to limit immigration into the US. The president has said companies abuse the H-1B program by bringing in college-educated foreign employees for jobs that could be done by US workers.

The department is asking the court to let it continue enforcing the fee pending its appeal.

“Every day that passes more aliens can petition and enter the country despite the President’s determination that their entry would be detrimental,” the department said in its court filing. “And even if Defendants ultimately prevail on appeal, it will be difficult to revoke those visas and remove aliens who did not pay.”

Judge Leo Sorokin of the US District Court for the District of Massachusetts vacated the fee in a June 8 decision, granting the request of 20 Democratic-led states that challenged the visa policy.

The judge found it encroached on Congress’ exclusive authority to impose taxes and violated the separation of powers. He agreed on June 12 to pause his decision, pending the First Circuit’s ruling on the government’s motion for stay pending appeal.

The states’ case is one of at least three lawsuits challenging the H-1B fee, with two others pending in the D.C. Circuit and the Northern District of California.

The case is State of Calif. v. Mullin, 1st Cir., No. 26-01699, motion for stay 6/18/26.