Tag Archive for: H-1B Proclamation

Cyrus Mehta & Kaitlyn Box*

Major Questions Doctrine in Immigration Cases after the Supreme Court Ruling in the Tariffs Case

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By Cyrus D. Mehta and Kaitlyn Box*

In a previous blog, we addressed the major questions doctrine, an idea articulated by the Supreme Court in West Virginia v. EPA, 142 S. Ct. 2587 (2022). The major questions doctrine holds that “in certain extraordinary cases” where it is unclear whether an agency action was authorized by Congress, “given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims”. We have advocated for the major questions doctrine as a tool that can be used to challenge the Trump administration’s sweeping changes to the immigration landscape through executive power.

The major questions doctrine, which is triggered when executive actions have major economic or political significance,  was very recently employed by the Supreme Court to invalidate a Trump administration policy. On February 20, 2026, in Learning Resources, Inc. v. Trump, 24-1287, (02/20/2026), the Supreme Court struck down the tariffs imposed by the Trump administration. In his majority opinion, Chief Justice John Roberts leaned heavily on the major questions doctrine, writing: “Th[e] stakes dwarf those of other major questions cases…[t]he President must “point to clear congressional authorization” to justify his extraordinary assertion of the power to impose tariffs…He cannot.” The Court was not persuaded by the government’s argument that the major questions doctrine does not apply to emergency statutes, stating that: “Where Congress has reason to be worried about its powers ‘slipping through its fingers,’…we in turn have every reason to expect Congress to use clear language to effectuate unbounded delegations”. Additionally, the Court held that the major questions doctrine is applicable notwithstanding the President’s authority to handle foreign affairs matters. The Court reasoned that only Congress can regulate tariffs ordinarily, despite tariffs always have foreign policy implications, and any delegation of this power by Congress would surely have been outlined explicitly. The Court concluded that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose tariffs, holding that “IEEPA’s grant of authority to ‘regulate . . . importation’ falls short” of conferring such authority, and that “IEEPA contains no reference to tariffs or duties. The Government points to no statute in which Congress used the word ‘regulate’ to authorize taxation”. 

Justice Kagan’s concurring opinion, however, emphasized that one does not need to rely on the major questions doctrine to challenge Trump administration policies. Justice Kagan objected to “…the demand for a special brand of legislative clarity” introduced in the line of cases elucidating the major questions doctrine. Instead, she argued that “the proper way to interpret a delegation provision is through the standard rules of statutory construction”, or “examining a delegation provision’s language, assessing that provision’s place in the broader statutory scheme, and applying a ‘modicum of common sense’ about how Congress typically delegates”. Applying a standard statutory interpretation analysis, Justice Kagan concluded that “[t]he crucial provision of IEEPA, when viewed in light of the broader statutory scheme and with a practical awareness of how Congress delegates tariff authority, does not give the President the power he wants”.

Extrapolating the Supreme Court’s reasoning to the immigration context, the major questions doctrine could be employed to challenge Trump administration policies like restricting birthright citizenship, or implementing a $100,000 fee for many H-1B visa applications.  The Presidential Proclamation implementing the new fee points to INA 221(f) as the authority for the policy. INA 221(f) states that “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” This fee would radically reshape the H-1B visa program, qualifying as an “extraordinary case” in which the major questions doctrine should apply. The $100,000 fee poses severe consequences for not only foreign professionals seeking H-1B visas, but also U.S. employers that hire H-1B workers, many of whom will now be practically unable to avail of the H-1B visa program. However, nothing in INA 221(f) authorizes the president to impose new fees for visa applications, let alone practically eviscerate a visa category. If Congress intended for the president to have the authority to dismantle entire visa categories, it would surely have granted him that power explicitly.

Although Justice Kagan makes a compelling  argument that one can rely on statutory construction rather than the major questions doctrine, we believe that the major questions doctrine may give plaintiffs a better chance to slice through INA 221(f) that has previously been upheld in Trump v. Hawaii as  giving the president broad power over immigration. 

The fee was upheld in federal district court in Chamber of Commerce v. DHS, with the court making only a passing reference the major questions doctrine. In footnote 8, the court states that “During the hearing, which lasted over two hours, the major questions doctrine was not mentioned once. Any argument that a substantive version of the major questions doctrine is relevant to this issue has thereby been forfeited…” In a second lawsuit filed in the U.S. District Court for the Northern District of California to challenge the $100,000 fee, Global Nurse Force v. Trump, which has not yet been decided and see here a link to the pleadings, plaintiffs have forcefully argued that interpreting INA §§ 212(f) and 215(a) to authorize the president to establish the $100,000 fee would “violate the major questions doctrine because these provisions contain no clear Congressional authorization for this action of great political and economic significance. And, there is no basis for delegated authority for the President to raise and spend money as he sees fit.”Following the Supreme Court’s decision in Learning Resources, however, the major questions doctrine may become a more robust tool for future challenges to the fee and in other immigration cases. 

 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

USCIS’s October 20 Clarification Will  Not Make the $100,000 H-1B Fee Disappear

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By Cyrus D. Mehta and Kaitlyn Box*

In a prior blog, we detailed Presidential Proclamation implementing a new $100,000 fee that applies to certain H-1B workers. The initial Proclamation created concern and confusion for H-1B beneficiaries and U.S. employers alike, as it left unclear which types of H-1B petitions would be impacted. On October 20, 2025, USCIS issued guidance stating that “for H-1B petitions subject to the Proclamation, petitioners must submit a copy of the proof of the payment from pay.gov or evidence of an exception from the fee from the Secretary of Homeland Security at the time of filing the H-1B petition. Petitions subject to the $100,000 payment that are filed without evidence of payment or the grant of an exception will be denied.”

USCIS guidance also clarifies that the Proclamation does not apply to “any previously issued and currently valid H-1B visas”,  “any petitions submitted prior to 12:01 a.m. eastern daylight time on September 21, 2025”, and “does not prevent any holder of a current H-1B visa, or any alien beneficiary following petition approval, from traveling in and out of the United States.” Moreover, “[t]he Proclamation also does not apply to a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, that is requesting an amendment, change of status, or extension of stay for an alien inside the United States where the alien is granted such amendment, change, or extension, and a beneficiary of an approved petition “will not be considered to be subject to the payment if he or she subsequently departs the United States and applies for a visa based on the approved petition and/or seeks to reenter the United States on a current H-1B visa.”

Ambiguity remains, however, in which categories of H-1B beneficiaries will be subject to the new fee. For example, even the updated guidance does not address whether the fee would apply if an H-1B amendment or extension petition was filed on behalf of a noncitizen who was on a brief trip outside the U.S. To ensure that they are exempt from the Proclamation, however, beneficiaries caught in this situation who have valid visas could simply travel back to the United States before the H-1B petition is filed, a scenario in which the fee is clearly inapplicable. However, individuals who were counted against the H-1B cap because they were terminated by their H-1B employer or have reached the six year maximum in H-1B status and are awaiting I-140 approval may no longer have valid H-1B visas. If new H-1B petitions are filed on behalf of these individuals, it is unclear whether the employer would be required to pay the $100,000 fee. 

The updated guidance also clarifies that  if a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, requests a change of status or amendment or extension of stay and USCIS determines that the alien is ineligible for a change of status or an amendment or extension of stay (e.g., is not in a valid nonimmigrant visa status or if the alien departs the United States prior to adjudication of a change of status request), the Proclamation will apply and the payment must be paid according to the instructions provided by USCIS. This could impact one whose H-1B extension or amendment has been denied. If the employer files a new petition for consular processing so that the beneficiary could travel overseas and apply for an H-1B visa stamp at the US Consulate, this petition would unfortunately be subject to the $100,000 fee. On the other hand, if a motion to reopen or reconsideration is filed and the case gets successfully reopened, the employer can avoid the $100,000 fee. Of course, there is a lot of uncertainty with a motion to reopen and reconsider with respect to the time it will take and the outcome. If the motion to reopen or reconsider fails, the H-1B worker might also have accrued more than 6 months of unlawful presence and would face the 3 or 10 year bar to reentry. 

USCIS’ updated guidance also does not indicate whether the fee applies to H-1B1 visas for Chilean and Singaporean nationals, although the U.S. Embassy of Singapore stated in a Facebook post on October 29, 2025 that the Proclamation “does not apply to the H-1B1 visa for Singaporean citizens. There is no change to the H-1B1 process at this time.”

Even if the scope of the Proclamation has been clarified since its promulgation apply to a narrower set of H-1B beneficiaries than initially appeared to be impacted, the new fee will nonetheless have a devastating impact on U.S. companies who rely on H-1B workers. It is clear that the fee will apply to new H-1B petitions filed on behalf of candidates selected in next year’s H-1B cap. However, if such candidates are in the US in a status such as F-1, and get selected under the H-1B lottery, they should not be subject to the $100,000 fee.  On the other hand, if such prospective candidates enter the US in a nonimmigrant status to try their luck at changing status to H-1B in the next March 2026 lottery to avoid the $100,00 fee, the USCIS could potentially still use its discretion in denying the change of status. Worse still, the prospective candidate would be subject to expeditious removal at the port of entry. 

 Given how unaffordable this fee will be for many, it is anticipated that a number of U.S. employers will be forced to stop filing new H-1B petitions altogether. Companies like Cognizant, Tata Consultancy Services, and Walmart, which traditionally employed large numbers of H-1B workers have already signaled that they will limit the number of H-1B petitions that they file going forward. Even cap exempt employers such as universities and non-profits affiliated to universities or non-profit research organizations will be subject to the $100,000 fee if the candidate cannot fall under any of the exceptions set forth in the October 2, 2025 clarification. 

After the October 20, 2025 clarification, many in the immigration community expressed relief that this guidance had blunted the impact of the Proclamation, but the clarification does not really address the fact that the Proclamation will continue to apply to many H-1B cases with a few exceptions. As we have stated in our prior blog, this Proclamation has been issued in violation of the INA, and there are two court challenges already to the Proclamation, and we hope that the courts will strike it down very soon. 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.