The past two weeks may prove to be among the most consequential in the history of America’s H-1B visa program. For more than 700,000 skilled professionals living and working in the United States, a surprise executive order issued late last month threatened to upend their lives overnight.
Just two weeks after President Donald Trump’s proclamation imposing an unprecedented $100,000 fee on every new H-1B applicant, the legal challenge many immigration experts expected—but few anticipated in this form—has arrived. A broad and seemingly unprecedented coalition of labor unions, academic associations, religious institutions, and private employers has joined forces to take the administration to court.
The lead plaintiff, Global Nurse Force, is a healthcare staffing agency that recruits international nurses for U.S. hospitals. Other plaintiffs include the United Auto Workers (UAW), the American Association of University Professors (AAUP), and several faith-based organizations. Together, they have filed suit in the U.S. District Court for the Northern District of California, arguing that the President’s action constitutes an unconstitutional overreach.
Represented by a consortium of advocacy groups and IMMpact Litigation—a joint venture of the immigration law firms Siskind Susser, Kuck Baxter, Joseph & Hall, and Bless Litigation—the plaintiffs argue that the president lacks the statutory authority to unilaterally alter the regulatory and financial framework governing the H-1B visa program.
The lawsuit states: “The proclamation transforms the H-1B program into one where employers must either ‘pay to play’ or seek a ‘national interest’ exemption, to be granted at the discretion of the Secretary of Homeland Security—a system that invites selective enforcement and corruption.”
READ: $100,000 ‘pay-to-play’ fee on H-1B visas faces first legal challenge (
In a conversation with The American Bazaar, leading immigration attorneys Greg Siskind and Charles H. Kuck—two of the principal architects of the legal challenge and co-counsels in Global Nurse Force v. Trump—explain why the lawsuit could become a defining moment in the balance of power between Congress and the executive branch in immigration law.
The American Bazaar: Can you walk us through the principal legal argument behind this lawsuit challenging President Trump’s $100,000 H-1B fee order?
Charles Kuck: The authority invoked by the President does not allow him to condition entry on a tax or fee. Furthermore, since this is clearly not a fee or a gift, it constitutes a tax—and only Congress has the power to levy taxes.
The lawsuit highlights the case of Phoenix Doe, an Indian researcher whose work is now stalled. How representative is her case of the broader harm caused by the new rule?
Greg Siskind: Regarding Phoenix Doe, her case illustrates well the story we wanted to highlight. The H-1B visa covers a broad range of highly skilled individuals in the US. It has a common requirement of the position being bachelor’s level. But that hits every important sector in American society.
For decades, America has led the world in scientific research, thanks in large part to foreign nationals who come here to work in our universities and research institutions. As an aside, just today Michel Devoret—an immigrant from France who is a professor at UC Santa Barbara and formerly at Yale University—won the Nobel Prize in Physics!
A substantial portion of those scientists rely on the H-1B visa to do their work. We also wanted to emphasize the diversity of H-1B employers, since the proclamation—and much of the media coverage—tends to focus only on the tech sector. Yes, tech is important, and we believe H-1B workers there are incredibly valuable, but the visa is also used by religious organizations, schools educating our children, rural hospitals, and many other sectors facing severe shortages—employers who are in no position to afford a $100,000 tax on each worker.
READ: Trump’s H-1B crackdown puts tech and U.S.-India ties at risk (
Are there any previous cases where unilateral fee or tax impositions by the executive branch have been struck down by the courts? Also, what is the immediate legal relief you are seeking?
Charles Kuck: Yes, many courts have struck down illegal taxes and tariffs, and the constitution gives exclusive power to the Congress on these issues. As for the immediate relief — we are looking for the court to strike down the proclamation as unlawful.
Has there been any response from the administration or federal agencies since filing the case?
Greg Siskind: We have not heard anything from the administration to date. We also have not seen any communications from government agencies about the tax since we filed the case.
The plaintiffs include labor unions, universities, and religious groups—an unusual coalition. How did these diverse groups come together for this case?
Greg Siskind: As for the diversity of the plaintiffs, as I noted, the untold story of the H-1B is that it touches so many people in the country in direct and indirect ways, and we wanted to make sure this was known.
The proclamation is premised on the idea that the H-1B is just a visa to bring in cheap tech workers who displace Americans. First, that’s not true. But secondly, it obscures the point that the H-1B is used so broadly to fill critical worker shortages and that this rule means religious congregations won’t have clergy, health care clinics won’t have nurses and doctors, cancer research will slow significantly, and more.