Lawyers prepare to sue Trump 'soon' over H-1B changes

“We were all caught off guard and frankly by surprise that this type of proclamation was being issued,” said Shev Dalal-Dheini, senior director of government relations at the American Immigration Lawyers Association.

Employers are already required to pay certain fees when petitioning for H-1B workers including application, fraud prevention, and sometimes asylum fees.

“It seems to go in the face of fees already statutorily mandated by Congress,” Dalal-Dheini said.

Immigration law organizations, including the American Immigration Lawyers Association, are already looking into the legality of the Trump administration’s actions, Dalal-Dheini said.

In Trump’s proclamation imposing the fee, he cites two authorities designated to the president under the Immigration and Nationality Act. Immigration attorneys said these authorities are either unclear or against the law.

The first authority allows the president to prohibit individuals from entering or leaving the United States based on “reasonable rules, regulations and orders.”

However, since the president’s proclamation only mentions imposing a one-time fee, the legal basis for using this rule appears shaky.

“It seems to me as if that wouldn't really fall into a rule for entry, because a rule for entry – I think – would have to be a rule for every time you're entering the country,” said Jordan Fischetti, an immigration policy fellow at Americans for Prosperity.

The second authority Trump cites allows him to restrict entry of any foreigner or class of foreigner based on concerns over national interest. Trump previously used this authority in his first administration to issue travel restrictions on foreigners from certain Muslim majority countries.

“It’s being used in a very different way that we’ve never seen before,” Dalal-Dheini said. “It’s not designed to prohibit issuance of visas, adjudications of petitions.”

Daniel Di Martino, a fellow at the Manhattan Institute, said lawyers will likely challenge the H-1B fee if the Trump administration attempts to administer it against an immigrant already in the United States.

In fiscal year 2024, the government approved more than 141,000 petitions for initial employment of individuals already in the United States, according to the U.S. Citizenship and Immigration Services’ data published in April. Fifty-four percent of these approved petitions were for individuals already in the United States.

Seventy-one percent of approved petitions in fiscal year 2024 were student visas. Other approved petitions included spouses and children of current H-1B workers or other work visa holders already inside the country.

“As soon as they try to charge the fee for somebody changing from a student visa to an H-1B, there will be a lawsuit,” Di Martino said. “The government will, in extreme likelihood, lose the lawsuit.”

Di Martino said charging “arbitrary” fees for immigrants who want to switch their visa status and are already in the United States is against the Immigration and Nationality Act.

“The Immigration and Nationality Act is very clear that the government cannot just charge arbitrary fees that they create,” Di Martino said.

Dalal-Dheini said she expects litigation challenging the Trump administration’s efforts to come “soon.”

“This is a coordinated attack on U.S. innovation,” Dalal-Dheini said. “Making it more difficult for the best and brightest to come to the United States and stay here and continue contributing to the United States.”