Our Amicus Brief in the First Circuit $100,000 H-1B Visa Fee Case

It is on behalf of the Cato Institute and myself.

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On Thursday, the Cato Institute and I filed an amicus brief in the US Court of Appeals for the First Circuit, in support of California and other states challenging the Trump Administration's imposition of a $100,000 fee on applications for H-1B visas (which are used by tech firms, research institutions, and other organizations to hire immigrant workers and researchers with various specialized skills).

The district court ruling in this case invalidated the $100,000 fee on the grounds that the executive had illegally usurped Congress' power to impose taxes. It relied heavily on the Supreme Court's recent decision in Learning Resources, Inc. v. Trump, the tariff case I helped litigate. A second federal district court later invalidated the fee on other grounds.

We are very grateful to Deno Hemonas and Philip Wilkinson of Wilson Sonsini Goodrich Rosati, who worked with me on the brief, pro bono. Stanford Law School Prof. and former federal judge Michael McConnell, also worked with us on the brief. He is one of the nation's leading experts on executive power, a prominent conservative originalist constitutional law scholar, and was our lead counsel in the Supreme Court phase of the IEEPA tariff case.

Here is a summary of our arguments:

As the Supreme Court emphasized in its recent decisions striking down Donald Trump's Massive IEEPA tariffs, "the Framers gave Congress alone access to the pockets of the people." Learning Resources, Inc. v. Trump, 607 U.S. 229, 241 (2026)  The tax power was, as Alexander Hamilton explained, "the most important of the authorities proposed to be conferred upon the Union." Just months ago, the Supreme Court in Learning Resources applied those fundamental principles to hold that the President may not use a general grant of authority to "regulate … importation" to impose tariffs, because the power to "regulate" is not the power to tax and Congress did not clearly delegate its taxing power.  This case asks whether the same President—by imposing a tax of his own devising on the entry of noncitizens and calling it a "restriction" on entry—may accomplish by a different label what Learning Resources forbade.

The exaction here is a tax.  Its "defining feature" is that it raises revenue. Learning Resources, 607 U.S. at 241. It is neither a mere fee contributing to the costs of operating the program nor a penalty. The power to "restrict" entry is not the power to "tax" entry.  To limit or qualify entry says nothing about charging for it, and the Government can identify no statute in which the words "restrict" or "restriction" confer tax authority.

The Immigration and Nationality Act  contains express, detailed provisions for fees and payments, setting each amount and specifying how the funds are collected and spent.  This confirms the absence of a generalized, unlimited discretionary presidential taxing power.  Congress does not "hide elephants in mouseholes," and this case involves a very large elephant.  Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001). In more than a century, no President has used Section 212(f) or Section 215(a) of the INA to raise revenue, a point the Government does not dispute.  As the Supreme Court held in Learning Resources, that absence is "strong evidence" the power does not exist.

In addition, the government's interpretation of the relevant statutes violates the major questions doctrine, which requires Congress to speak clearly when delegating power over a major economic or political issue to the executive.  The power to impose unlimited taxes on any visa holders or immigrants entering into the United States is undoubtedly a major one. If, nonetheless, the court concludes that Congress did somehow grant the government the sweeping power it claims, it would violate the constitutional nondelegation doctrine, which constrains delegations of legislative power to the executive.

I have previously criticized the $100,000 H-1B fee on both legal and policy grounds here, here, and here.