The Department of Homeland Security, in its filing to the US Court of Appeals for the First Circuit against the federal judge’s order striking the $100,000 H-1B visa fee, argued that it is not a tax and not an unauthorized tax. 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.As Bloomberg reported, the DHS told an appeals court in Boston that the fee imposed to restrict the flow of H-1B visas falls within his broad authority under federal immigration law. 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 abuse of the H-1B program is 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 fields instead replacing them with aliens with foreign loyalties,” the DHS said.The visa fee was one part of the Trump administration’s broader efforts to limit immigration into the US. The president 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 asked 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.”
