The current administration surprised many companies and workers in the United States on H-1B visas when the president signed an executive order late Friday that it would cost employers $100,000 a year for each of those workers to enter the country, effective on September 21. Those who are out of the country now will have until midnight tonight to return to the U.S. or their employers will have to pay $100,000 for them to enter on Sunday.
First things first: We fully expect litigation challenging the decision. The speed with which the decision was announced and the tight window between the executive order being signed and put into effect shows a capricious indifference for its effect on visa holders that the courts frequently don’t endorse.
Also, as Aaron Reichlin-Melnick from the American Immigration Council wrote on BlueSky, the decision is “almost certainly illegal and likely to be struck down in court. Congress has only authorized the government to set fees to recover the cost of adjudicating the application. There is no statutory authority to impose fees designed to limit the use of a visa.”
Still, the timing of the executive order makes it unlikely that anyone will file for an injunction and get it approved before Sunday when it goes into effect.
Workers with H-1B visas who are out of the country should return on Saturday if possible. Those who can’t should not try to reenter the U.S. until the courts have ruled. Then, they should return as soon as possible if an injunction or stay is granted.
Those who plan to travel should consult an experienced immigration attorney before they do so to discuss the possible ramifications.
We’ll dig into this decision next week, but it sadly is yet another instance of the current administration letting beliefs and prejudices dictate its actions and not the truth. In January, we addressed many of the H-1B misconceptions, some of which have been used to rationalize this decision.
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