NOTE : The Federal Court Strikes Down Trump's $100,000 H-1B Fee — But the Damage Is Done
On June 8, 2026, a federal judge in Boston ruled Trump's $100,000 H-1B visa fee unconstitutional. The court was right. But while Washington litigated, China launched its own visa program and the talent war moved on without America.
- On June 8, 2026, a federal judge in Boston ruled Trump's $100,000 H-1B visa fee unconstitutional. The court was right. But while Washington litigated, China launched its own visa program and the talent war moved on without America.
- Introduction: A Judge Says No to Trump, But the Real Debate Is Only Beginning
- A Tax Disguised as an Immigration Fee
Facts, quotes, and cited links remain in the body. Interpretations are framed as analysis or opinion according to the format.
Introduction: A Judge Says No to Trump, But the Real Debate Is Only Beginning
A Tax Disguised as an Immigration Fee
On June 8, 2026, federal judge Leo Sorokin, sitting on the US District Court for the District of Massachusetts in Boston, handed down a thundering ruling: the presidential proclamation by Donald Trump imposing additional fees of $100,000 on new H-1B visa petitions is illegal, unconstitutional, and must be vacated in its entirety. In a terse formulation, Sorokin summed up what dozens of lawyers had been arguing for months: "The Court finds that the Policy imposes a tax on H-1B petitions without the requisite delegation by Congress." Translation: the president levied a tax without the authority to do so.
This ruling is the result of legal action brought by twenty Democratic state attorneys general, led by California, who had challenged Trump's September 2025 proclamation. Ironically, Judge Sorokin's reasoning draws in part on Supreme Court jurisprudence regarding the Affordable Care Act under Obama — the very Obamacare that Trump always sought to destroy. The law is sometimes sharply ironic.
Twenty Plaintiff States and an Unassailable Constitutional Logic
The attorneys general of California, New York, Connecticut and seventeen other states had filed their lawsuit in December 2025, advancing a simple argument: only Congress, under Article I of the US Constitution, holds the power to levy taxes. The $100,000 fee, by its amount, its deterrent function and its inability to correspond to the actual processing costs of a petition, behaved in every respect like a tax. The administration had argued that the measure constituted an "entry condition" authorized by the Immigration and Nationality Act (INA). Judge Sorokin was not persuaded.
Connecticut Attorney General William Tong had declared after the ruling: "We sued, we won, and we will continue to fight to protect a fair and lawful immigration process." Massachusetts AG Andrea Joy Campbell had praised a decision that "protects the integrity of the H-1B program as a tool to address serious labor shortages in vital industries like education, healthcare and medical research."
The September 2025 Proclamation: Where the Idea Came From
An Executive Order Dropped Out of Nowhere on a Friday Evening
On September 19, 2025, Donald Trump signed in the Oval Office the "Restriction on Entry of Certain Nonimmigrant Workers," known as Proclamation 10973. The text was clear in its political intent: the H-1B program was according to the administration being "abused by companies" using it to replace American workers with "cheap foreign labor." Effective September 21, 2025, every new H-1B petition for a worker located abroad had to be accompanied by a fee of $100,000, payable via the government platform pay.gov. In one stroke, fees that had traditionally run between $2,000 and $5,000 exploded to twenty or even fifty times their previous level.
The proclamation was surgically targeted: it did not touch renewals, status changes from within the United States, or extensions. It targeted exclusively new petitions for workers recruited abroad — those companies bring in for the first time from India, China, Brazil or elsewhere. This precise targeting revealed the real objective: to discourage hiring new foreign talent without disrupting the millions of H-1B holders already working on American soil.
An 85,000-Visa-per-Year Program Under Extreme Pressure
To grasp the scale of the measure, one must recall that the H-1B program distributes each year 85,000 visas to the private sector: 65,000 under the general cap and 20,000 reserved for holders of a master's degree or doctorate from an American university. Demand has far exceeded supply for years — in the most recent cycle, more than 440,000 unique registrations competed for these 85,000 slots, meaning odds of selection below one in five. The largest individual H-1B visa sponsors are Amazon, Microsoft, Meta and Google. India accounts for approximately 70% of attributions, China approximately 12%.
It is in this context of structural scarcity that Trump introduced his fee, aggravating an already-tense situation for companies dependent on this talent pool. For universities, hospitals and nonprofit organizations — exempt from the cap but not from the fee when the worker is abroad — the measure represented an insurmountable financial obstacle for essential positions that the American labor market cannot fill.
The Immediate Impact: A Free Fall in Applications
85 Payments in Five Months — A Number That Says Everything
The numbers speak with statistical brutality. According to data cited in court filings, by February 15, 2026 — five months after the proclamation took effect — only 85 payments of $100,000 had been made on the government platform. Eighty-five. In a program that normally generates tens of thousands of new petitions per year, this figure is revealing of a total collapse in the international recruiting pipeline. Analysts at JPMorgan had estimated the measure could cut new H-1B petitions by approximately 5,500 per month. Reality far exceeded that estimate.
For fiscal year 2026, US Citizenship and Immigration Services (USCIS) received only 211,600 properly submitted registrations for the annual H-1B cap, compared to 343,981 the previous year — a drop of nearly one-third. Technology companies, universities, hospitals and nonprofits had frozen or cancelled their recruitments. Rural doctor positions, university chairs and artificial intelligence researchers: all struck by a fee with no clear legal precedent.
Employers Forced to Restructure Their Hiring Strategies
Facing the fee, companies adopted workaround strategies. According to Wall Street Journal reporting, some large technology firms decided to recruit exclusively from talent already present in the United States on a student visa or another status permitting an internal status change, thus avoiding the mandatory payment. Others temporarily relocated positions to Canada, England or Australia, allowing the worker to enter the North American market through a different route. These costly and inefficient adjustments slowed recruiting cycles by several months for critical roles in artificial intelligence and cybersecurity.
Amazon and Microsoft had even taken a spectacular step in September 2025: they had advised their H-1B and H-4 holders not to leave the United States, or to return before midnight on September 21, to avoid finding themselves stranded abroad and obligated to pay the fee to return to work. This Kafkaesque situation — legal workers retained on American soil out of fear of leaving — illustrates better than any legal argument the operational absurdity of the Trump proclamation.
The Tech Fracture: Giants vs. Challengers
OpenAI and Nvidia Didn't Flinch — and There's a Reason
An analysis published by Fortune on June 10, 2026 revealed a striking fracture in the American technology industry in the face of this fee. On one side, cutting-edge artificial intelligence companies — OpenAI, Nvidia, Anthropic — continued to recruit foreign talent even at the $100,000 per petition rate. Nvidia's certified applications grew by 19% in the first quarter of 2026 compared to the same period in 2025. Those of OpenAI more than tripled. Anthropic went from approximately 10 to nearly 60 certified applications. For these companies playing in the major leagues of global AI, $100,000 per hire is a cost their valuation absorbs without difficulty.
Jensen Huang, Nvidia's CEO, had declared on CNBC to be "happy to see President Trump taking decisive actions" — adding poignantly that his own family could not have afforded to pay $100,000 to immigrate, and that this chance would therefore not have been possible for him. Sam Altman of OpenAI had said he found it "beneficial" to align financial incentives with skilled immigration. These public statements of support had in reality an obvious competitive logic: if the fee drives away high-volume recruitment, only the companies that can pay it — the wealthiest — consolidate their talent advantage.
The Historical Giants Are Feeling the Strain
On the other side, legacy technology giants with massive workforces — Amazon, Google, Microsoft — had recorded significant declines in their H-1B activity. For a company like Amazon, the largest individual H-1B visa sponsor in the United States, every international hire suddenly represented a substantial budget decision. Meta and Apple recorded more modest reductions. The Fortune analysis thus revealed an unprecedented dichotomy: the world's best-capitalized AI startups were further consolidating their talent capture while mass-employment giants were pulling back.
This divide is not trivial. It reveals that the Trump fee, far from protecting American workers from foreign talent competition, actually concentrated the best foreign talent further in the hands of an even smaller number of hypercompetitive companies. This is the exact opposite effect of what a policy of diversifying access to talent should produce in a healthy economy.
Judge Sorokin's Legal Reasoning
A Tax Is a Tax, Even Disguised as an Immigration Fee
Judge Leo Sorokin's 42-page ruling rests on several distinct legal pillars, each sufficient on its own to invalidate the proclamation. First, the characterization of the measure: Sorokin ruled that the $100,000 payment is not a "processing fee" or a "penalty" in the legal sense — it is a tax, because it is primarily designed to raise revenue and deter behavior, not to cover the administrative costs of a government service. And the US Constitution, Article I, reserves exclusively to Congress the power to lay and collect taxes.
Second, the violation of the Administrative Procedure Act (APA): federal agencies — USCIS and the State Department — implemented the proclamation without following the mandatory notice-and-comment rulemaking procedures, without opening a public comment period. They also exceeded their statutory authority regarding fee-setting, and acted in an "arbitrary and capricious" manner by failing to account for the legitimate interests of employers. The ruling further adds that the INA — on which the administration relied — does not delegate to the president Congress's constitutional taxing power.
Three Independent Grounds, One Total Annulment
The solidity of the Sorokin ruling lies in its layered construction: even if one of the three legal bases were overturned on appeal, the other two would survive. On the constitutional plane, the tax is invalid because Congress did not delegate this power. On the statutory plane, it exceeds the bounds of the INA. On the procedural plane, the agencies violated the APA. The fact that the judge granted summary judgment in favor of the twenty plaintiff states — without even needing a trial — indicates there was no genuine dispute on the facts, only on the law.
The Trump administration had defended its position by arguing that the Proclamation fell within presidential discretionary authority over immigration, citing notably Section 1182(f) of the INA authorizing the president to restrict the entry of foreign nationals whose presence would be "detrimental to the national interest." Sorokin answered that this authority, however broad, does not include the power to create a tax — a conceptual distinction the administration had deliberately blurred in its public communications.
The Court Conflict: Washington D.C. Against Boston
Two Judges, Same Law, Diametrically Opposite Conclusions
What makes this case particularly explosive on the constitutional plane is the existence of a contradictory ruling handed down a few months earlier. In December 2025, Judge Beryl Howell of the US District Court for the District of Columbia had ruled in favor of the Trump administration in a suit brought by the US Chamber of Commerce, concluding that the president indeed had sufficient authority under the INA to impose this measure as an entry condition. That ruling was on appeal at the DC Circuit at the time of the Sorokin ruling.
We thus find ourselves with two federal courts that examined the same proclamation, invoked the same statutes, and reached diametrically opposite conclusions. The potential circuit split between the First Circuit and the DC Circuit makes an intervention by the US Supreme Court almost inevitable. According to analyses published by JD Supra on June 16, 2026, "the ultimate resolution of this rule will likely be decided by the US Supreme Court."
A Third Front in California Further Complicates the Picture
As if the picture were not already complex enough, a third proceeding remains pending before the Northern District of California. Initiated in October 2025 by a coalition of unions, health organizations, religious institutions and individual workers, this action survived the administration's attempts to have it stayed pending the DC Circuit decision. It adds yet another thread to a legal web that should occupy US federal courts through at least 2027.
The administration itself seems to be leveraging this multiplication of judicial fronts: as long as the legal status of the fee remains uncertain, the deterrent pressure on employers persists. Even if the fee is formally annulled in Boston, the threat of a reversal on appeal or a new proclamation is enough to freeze hiring decisions for companies least endowed with in-house legal resources.
The June 12 Development: The Administrative Stay
The Trump Government Plays the Judicial Clock
Judge Sorokin's June 8 ruling did not remain intact for long. On June 11, 2026, the Trump administration filed a notice of appeal with the First Circuit Court of Appeals. On June 12, it asked Judge Sorokin himself to stay his ruling pending the appeal. Sorokin declined to grant a full stay — signaling that he saw no serious likelihood of success on appeal — but granted a partial administrative stay: his June 8 order is temporarily suspended while the First Circuit Court of Appeals rules on a stay request, provided the government files that request before June 18, 2026.
The practical consequence, neatly summarized by analysts at Berry Appleman & Leiden on June 15, 2026: during this interim period, USCIS may continue to collect the $100,000 fee. Employers who had been waiting for the final ruling before filing petitions now find themselves in an unprecedented regulatory turbulence zone. White House spokesperson Taylor Rogers had told CNBC the administration was "confident this decision will be reversed on appeal" — adding that the H-1B had been "abused for decades" and that the president had "finally acted."
Regulatory Uncertainty as a Deterrent Weapon
The Department of Justice, speaking through spokesperson Natalie Baldassare, communicated: "We will continue to hold companies accountable when they illegally exploit American workers and don't use the H-1B program as intended." A deliberately aggressive message, even after a judicial defeat, signaling that the administration intends to maintain pressure on employers that recruit heavily abroad. This posture is not gratuitous: it generates precisely the kind of regulatory uncertainty that pushes companies to delay international hiring, even in the absence of a fee formally in force.
New York Attorney General Letitia James had responded vigorously: "The court has put an end to the administration's illegal attempt to destroy this vital program and countless jobs. Visa workers contribute enormously to our state, and we will continue to fight to stop the administration's unjust and illegal attacks on immigrant communities."
The 'Necessary Evil' Argument: Where Trump Was Right
The H-1B Genuinely Had Documented Abuses
To understand why Trump was not entirely wrong in his diagnosis — even if his prescription was disastrous — one must look at the real data on the H-1B program. According to an analysis published by RealClearInvestigations in May 2026, two-thirds of the approximately 400,000 tech jobs in Silicon Valley are held by foreign-born workers. Workers born in India represent 23% of the total, those born in China 18%. Together, they numerically outnumber workers born in the United States, who represent only 34%. This is not an anecdote: it is a structural transformation of the American knowledge economy.
The H-1B program has indeed been used by some large IT staffing firms to circumvent American wage protections. Workers dependent on their employers for their green card were in a position of structural vulnerability, less inclined to negotiate wage increases. Harvard economist George Borjas estimated that companies saved on average $100,000 per H-1B worker over the standard six-year visa period, compared to an American equivalent. These figures warranted a serious policy response. Not this one, but a response.
Data Showing Reform Was Needed — Not a Shutdown
Multinationals like Google had laid off 951 American employees in 2024 while hiring 1,058 H-1B workers. Apple had laid off 735 but hired 864 new H-1Bs. Microsoft had eliminated 3,426 positions from 2022 to 2024 while bringing in 3,259 H-1Bs. These figures raise legitimate questions about large technology companies' practices. What was needed is targeted reform: higher wage requirements, better verification of genuine labor shortages, a crackdown on "body shops." The salary-weighted lottery system introduced in February 2026 was actually moving in that direction — and unlike the $100,000 fee, it withstands constitutional scrutiny.
The structural reform of the H-1B — requiring compensation closer to market rates, prioritizing elite profiles, eliminating abusive actors — was perfectly achievable within the existing legislative framework, with congressional approval. Trump preferred the fast track of a unilateral proclamation. This shortcut — legally untenable — is precisely what provoked Judge Sorokin's annulment.
What This Measure Cost Western Attractiveness Against China
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Beijing Watches, Recruits and Rejoices
Here is the big picture that too few commentators dared to put on the table. While the United States was mired in legal battles over the cost of a work visa, China was accelerating its own foreign talent attraction program. Beijing launched its K visa program, designed explicitly as "the Chinese version of the American H-1B," allowing highly skilled foreign workers to apply without a prior job offer. Beijing and Shanghai significantly raised salary thresholds for Category A and B foreign work permits, signaling a willingness to attract the most competitive profiles in the global market.
The competition for talent in artificial intelligence, quantum physics, biotechnology and semiconductors is a geopolitical war being waged in the universities of Delhi, Mumbai, São Paulo and Seoul. Every high-caliber engineer who chooses Beijing over San Francisco because the American process is too uncertain, too costly, too hostile — that is a point lost for the West in the decisive technological competition of this century. The Trump administration, by imposing prohibitive fees without a solid legal basis, handed China a golden recruitment argument: "Come to us, it's simpler."
Canada and Europe Are Picking Up the Talent America Is Pushing Away
Canada, with its Express Entry system and responsive economic immigration mechanisms, is perfectly positioned to capture talent that was hesitating over a now-unpredictable American system. Indian AI engineers trained at American universities have begun seriously weighing the option of Toronto or Vancouver as an alternative to Silicon Valley. Canada's skilled immigration numbers show steady growth since 2025, fed in part by American regulatory instability.
Europe, with its 2021 Blue Card reform, also offers simplified pathways. Hubs like Berlin, Amsterdam, Stockholm and Paris are deploying specific programs to attract global tech talent. These destinations remain less attractive than San Francisco in terms of innovation ecosystem — but the attractiveness differential narrows every time Washington creates a new bureaucratic or financial barrier. The geopolitical stakes are clear: the West must remain the destination of choice for the world's brightest minds, or it will lose the technological battle against China.
The Forgotten Sectors: Healthcare, Universities, Basic Research
Rural Hospitals in Distress, Laboratories at a Standstill
Public debate about the H-1B focuses almost exclusively on Silicon Valley. But Trump's 2025 proclamation struck many other sectors. According to arguments made in court, the $100,000 fee directly threatened the ability of underserved rural areas to recruit foreign-trained physicians, specialist surgeons and nursing staff. These regions — often home to Trump's own electorate — are precisely those where the medical labor shortage is most critical and where the H-1B program plays an irreplaceable role.
The public universities of California, Massachusetts and Connecticut had argued in their court filings that the fee compromised their ability to recruit internationally renowned professors and postdoctoral researchers, in fields where qualified American candidates are structurally insufficient. Religious organizations — also among the plaintiffs in the California action — employed pastors and ministers of faith via H-1B for congregations whose members are themselves often immigrants. These realities do not fit the caricature of the debate on skilled immigration.
Basic Research: A Pillar of Western Power
What is less often said is that Western technological leadership — against China, Russia, Iran — rests in large part on the quality of its basic research. The laboratories of MIT, Stanford, Caltech, Oxford and ETH Zurich operate with a strong contingent of foreign-born researchers. In the fields of generative AI, advanced semiconductors and synthetic biology, the most competitive teams in the world are systematically multinational. A policy that discourages international recruitment in these domains does not protect America — it directly weakens its technological arsenal.
The US Chamber of Commerce filings in its parallel proceeding specifically argued that the proclamation "disrupted employers' hiring plans and resulted in multiple court challenges." Daryl Joseffer, the Chamber's executive vice president, had declared that the $100,000 fee made "H-1B visas financially unworkable." This conclusion — from an organization representing the interests of large American companies — should be enough to convince any good-faith observer that the measure did not serve the national economic interest in its entirety.
The Tariff Jurisprudence: A Decisive Precedent for the Future
The Supreme Court Had Already Bounded Executive Taxing Power
One crucial element of the legal context is often underestimated in media coverage: on February 20, 2026, the US Supreme Court issued a 6-3 decision striking down the sweeping tariffs imposed by Trump, in the case of Learning Resources, Inc. v. Trump. The Court's central reasoning was that the president cannot exercise Congress's taxing power without citing an explicit statutory delegation, even in foreign policy and trade domains. As Bloomberg Law noted as early as February 24, 2026, Chamber of Commerce lawyers had immediately submitted briefs arguing that "like the challenged tariffs, the $100,000 fee manifestly constitutes an exercise of Congress's taxing power."
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Adam G. Unikowsky, partner at Jenner & Block LLP representing the Chamber, had written: "Like the challenged tariffs, the $100,000 fee manifestly constitutes an exercise of Congress's taxing power." This is exactly the reasoning Judge Sorokin applied in his June 8 ruling. The logic is solid: the Supreme Court said the president cannot tax without explicit congressional authorization; the H-1B fees are a tax; therefore the president could not impose them. This tariff precedent — a victory for American import businesses — became a pillar of the defense for businesses importing human capital.
The 'Major Questions Doctrine' and Its Implications
Beyond the tariff precedent, plaintiffs in the various H-1B proceedings also invoked the "major questions doctrine" — a Supreme Court doctrine requiring that Congress explicitly authorize executive actions with major economic and political implications. Multiplying by twenty to fifty times the cost of a visa used by tens of thousands of American companies clearly constitutes a major economic policy decision. This doctrine, reinforced by the Supreme Court in several recent decisions, constitutes an additional structural constraint on American executive power.
These combined jurisprudential developments — tariffs, major questions, Congress's taxing power — sketch the contours of a Supreme Court increasingly skeptical of executive expansionism, even in domains traditionally deferred to the president such as immigration and foreign trade. If the case does make it to the nine justices, the Trump administration will arrive with recent jurisprudence that is structurally unfavorable on the question of taxation without legislative authorization.
What Lies Ahead: Appeal, Supreme Court, September Expiration
A Legal Saga Far From Over
The situation as of June 19, 2026 is as follows: the Trump administration has filed its appeal with the First Circuit, the $100,000 fee is provisionally reactivated while the stay request is examined on appeal, and the parallel proceeding in the DC Circuit — in which the December 2025 decision had upheld the fee — remains pending. According to JD Supra analysts, a circuit split between the First Circuit and the DC Circuit would make a Supreme Court intervention almost inevitable. The Court's current composition and its recent jurisprudence on the limits of executive power leave genuine uncertainty about the final outcome.
A natural deadline exists: the Trump proclamation expires September 20, 2026, unless the administration renews it. If the legal battles drag on long enough, the fee could die a regulatory death before the Supreme Court rules. But that would be a victory by default, not by clarification of the law. And a determined administration could perfectly well issue a new proclamation in October 2026, this time more carefully drafted to avoid the constitutional pitfalls identified by Sorokin — by going through Congress, for instance, or by restructuring the measure as an entry restriction rather than a tax.
The USCIS Horizon and the Uncertainty for Employers
As JD Supra analysts noted on June 16, 2026: "The precise scope of the stay granted by the Massachusetts District Court is unclear, and USCIS has not issued clear guidance on whether it intends to continue collecting the fee." This ambiguity in federal agency communications is itself a message: the administration is not making life easy for companies trying to navigate this shifting regulatory landscape. HR managers at large technology companies, universities and hospital systems are in practice unable to plan their international recruiting more than a few weeks out — an aberration in recruitment cycles that normally extend six to twelve months.
The real impact, difficult to quantify but well-documented in court filings, is that job offers were withdrawn, doctoral programs lost candidates, essential medical positions remained vacant, and AI research projects were slowed. These diffuse costs, spread across thousands of actors, do not make headlines like a court ruling. But they accumulate into a lasting competitive handicap for the American economy and, by extension, for the West as a whole.
The Western Position: How to Turn This Crisis Into Strategy
Europe Must Seize the Window That Has Finally Opened
While the United States is giving itself this legal spectacle, one question presses insistently: is the West as a whole benefiting from the opening that this American regulatory instability creates? The honest answer is: insufficiently. Programs like the reformed EU Blue Card of 2021 theoretically offer simplified access to non-European highly skilled workers. But national processes remain fragmented, slow, and minimum wage conditions vary considerably across member states. Canada, with its Express Entry, remains far better positioned to quickly capture hesitant talent.
What the American H-1B chaos shows the West as a whole is that attractiveness for talent is a state policy that must be stable, predictable, and perceived as welcoming. An Indian engineer who graduated from MIT hesitating between staying in the United States and joining a startup in Bangalore to bypass American regulatory vagaries — that talent potentially lost to the West is a decision made in uncertainty. Europe should have a clear strategic response to this displacement. It does not yet have one, and this is a weakness we can no longer afford in the face of Chinese competition.
A Pro-Talent West as Geopolitical Doctrine
The final lesson of this affair goes far beyond American immigration law. It says something fundamental about what the West — the United States, Europe, Canada, Australia — must choose to be in the global technological competition of the 21st century. Either we are the destination for the world's brightest minds, by maintaining stable, attractive and comprehensible skilled immigration systems. Or we yield to the temptation of retreat, fees, financial walls, regulatory uncertainty — and we offer China exactly what it seeks: a durable advantage in the talent race that will determine who dominates AI, semiconductors and synthetic biology in the coming decades.
The annulment of the $100,000 fee by Judge Sorokin is a victory for the separation of powers and for Western-style rule of law. It is also a brutal reminder that talent immigration policy cannot be a presidential improvisation — it must be a built and durable state strategy, adopted by Congress, communicated clearly to employers, and aligned with the West's long-term geopolitical objectives. We cannot win the technological cold war with China if we treat our best talent recruiters as enemies. Trump identified real abuses in the H-1B program. His response was legally untenable and strategically counterproductive. The West deserves better than this choice between chaotic protectionism and naive laissez-faire. The Supreme Court will probably rule in 2027. In the meantime, talent does not wait.
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Maxime Marquette (2026). NOTE : The Federal Court Strikes Down Trump's $100,000 H-1B Fee — But the Damage Is Done. MadMax. https://mad-max.co/en/article/billet-la-cour-federale-annule-les-100-000-trump-sur-le-h-1b-mais-le-mal-est-fait
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