In the never-ending parody of what is normally a legal, valid and consistent Presidential Administration (herein after the Trump Administration (TA), the President issued an Executive Order which attempts to raise the filing fee for H-1 petitions by the unbelievable amount of $100,000.
The first thing to notice in this “Alice in Wonderland” world created by the TA, is what this preposterous Order will do (and hopefully the last thing it will do) is generate lawsuits around the country. Further, due to a recent Supreme Court decision, separate lawsuits must be filed in every District Court in the country.
These lawsuits will be against Trump and USCIS, which has been given the unfortunate task of defending this Order. The cause of action will likely be based on the Administrative Procedures Act (APA). This law requires Federal Agencies to go through a complicated and lengthy process to change its regulations, which in this case is the change in the filing fee specifically. USCIS must go through what is called “notice and comment” which allows any person or organization in the country (and some outside the US) to comment on the proposed Order. This means USCIS will publicize the Order and request comments. There is usually a 60 or 90-day period to respond with comments.
Once all comments are received, USCIS must provide an analysis of each comment (sometimes in groups of related comments). In view of the reasons stated by the TA for this Order, it seems extremely likely the Agency will not be able to justify the new fee, and it therefore will fail.
Finally, the TA may rely on Section 212 (f) of the Immigration and Nationality Act of 1952, as amended. This section of the Immigration Act (INA) allows the President to change US immigration law by himself but ONLY if the change will curtail the employment of H-1 visa holders which he deems “detrimental” to the country. The only conceivable justification which can be argued is the H-1 program takes jobs from US workers. This will be almost impossible for TA to prove in court for numerous reasons.
At the very least, the litigation over the Order will take many months, if not years, to go to the Supreme Court and until then it should not be effective. For right now, it is best not to file H-1 petitions until we get more clarity in this situation. However, for those cases that cannot be delayed, the petition should be filed with the “normal” fees and not the $100,000. We will provide more information and analysis when we receive it.
Until then, feel free to contact our office for a consultation with David Swaim.
