DHS pleads that the $100,000 H-1B visa fee is not a tax and should be refunded because H-1B abuse is a national security concern.
The Department of Homeland Security, in its filing with the U.S. Court of Appeals for the First Circuit against a federal judge’s order nullifying the $100,000 H-1B visa fee, claimed it was neither a tax nor an unauthorized tax.
Judge Leo Sorokin of the US District Court for the District of Massachusetts overturned the fees in a June 8 decision, granting the request of 20 Democratic-led states that objected to the visa policy. The judge found that the law infringed on Congress’ exclusive authority to impose taxes and violated the principle of separation of powers. He agreed on June 12 to temporarily suspend his decision, pending the First Circuit’s ruling on the government’s motion to suspend pending appeal.As Bloomberg reported, the Department of Homeland Security told an appeals court in Boston that the fees imposed to restrict the flow of H-1B visas fall within its broad authority under federal immigration law. The government said the one-time application fee is not properly considered a tax, but the president would have the appropriate authority to issue it even if it were a tax.“Abuse of the H-1B program represents a national security threat because it reduces American wages and discourages Americans from pursuing careers in science and technology, thereby risking American leadership in these areas rather than replacing them with foreigners with foreign loyalties,” the Department of Homeland Security said.
The visa fees were part of the Trump administration’s broader efforts to limit immigration to the United States. The president said companies are abusing the H-1B program by bringing in foreign employees who are college graduates for jobs that could be filled by American workers. The Ministry asked the court to allow it to continue imposing fees pending its appeal.“With each passing day, more foreigners are able to file petitions and enter the country despite the president’s determination that their entry would be harmful,” the department said in its court filing. “Even if the defendants ultimately succeed on appeal, it will be difficult to revoke those visas and deport aliens who have not paid.”