COLUMN: A judge strikes down Trump's $100,000 surcharge on H-1B visas

COLUMN: A judge strikes down Trump's $100,000 surcharge on H-1B visas

Introduction: The court says what economists have known since September 2025

June 8, 2026, Boston: the $100,000 surcharge is declared illegal

On June 8, 2026, federal judge Leo Sorokin of the Boston district court struck down the $100,000 surcharge the Trump administration had imposed on new H-1B visa applications for skilled foreign workers. The ruling is national in scope. It is unequivocal in its reasoning: the measure was illegal, exceeded presidential authority, was procedurally deficient, arbitrary and capricious, and constituted in reality a tax — which only the U.S. Congress has the power to levy.

This surcharge had been imposed by a presidential proclamation dated September 19, 2025, taking effect on September 21, 2025. In less than a year, it had multiplied H-1B application costs by an astronomical factor: standard regulatory and statutory fees ranged from $960 to $7,595 before the proclamation. With the $100,000 surcharge, costs became inaccessible for a large share of American employers — hospitals, universities, schools, technology SMEs, startups. The effects were immediate and documented.

A tax disguised as an immigration surcharge

Judge Sorokin was direct in his formulation: "Here, the substance and application of the $100,000 payment reveal that it is a tax, regardless of what the payment is called." That sentence matters. It says not only that the measure was poorly conceived or excessive. It says it was fundamentally unconstitutional, because it usurped a power reserved exclusively to the legislative branch by the U.S. Constitution. The president does not have the right to levy taxes by executive order, regardless of the administrative packaging applied.

To support this reasoning, Sorokin drew on a February 2026 Supreme Court decision striking down Trump's tariffs on similar grounds: if the president lacks the authority to impose tariffs without congressional authorization, he likewise lacks the authority to impose a $100,000 tax on visa applications by invoking his power to restrict entry of foreigners deemed "detrimental to the interests of the United States." Both cases share the same fundamental legal flaw.

The H-1B visa: a cornerstone of American innovation

What H-1B visas actually represent for the economy

The H-1B visa program allows American companies to employ foreign workers in specialty occupations requiring highly specialized theoretical knowledge. In practice, this covers an extraordinarily broad range: software engineers, researchers, physicians, university professors, pharmaceutical researchers, architects, specialized accountants. These workers do not replace qualified available Americans — employers must attest, under penalty of sanctions, that they cannot find qualified American candidates for these positions.

The economic reality is documented by dozens of independent studies: H-1B workers are net creators of American jobs. The companies they run, co-found, or develop employ large numbers of American citizens. A significant share of Silicon Valley entrepreneurs were initially H-1B visa holders. Hospitals in rural areas that cannot recruit American physicians depend on these visas to maintain their medical services. Research universities depend on these visas to attract the world's best minds.

The Trump proclamation: an attack on American innovation

The September 2025 proclamation described the H-1B program as having been designed to "replace, rather than supplement, American workers with lower-paid, lower-skilled labor." That characterization is factually inaccurate, contradicted by available data on the salary levels and qualifications of H-1B visa holders — the majority of whom are at compensation levels well above the median American salary in their respective sectors.

But the proclamation had concrete effects on real institutions. Hospitals struggled to recruit specialist physicians in underserved areas. Universities saw promising candidates choose positions in Canada, Germany, or Australia rather than impose a $100,000 surcharge on their employers. Schools lost mathematics and science teachers. That is not protection of American workers. It is economic self-sabotage.

The 20 state attorneys general who brought the case

A bipartisan coalition defending the real economy

Judge Sorokin's decision follows a summary judgment granted to the plaintiffs in the case: 20 state attorneys general who had challenged the constitutionality of the surcharge. This coalition includes states whose economies are deeply tied to the H-1B program — states home to large concentrations of technology companies, research institutions, and medical centers. Their central argument was precisely the one Judge Sorokin accepted: the surcharge was a tax that only Congress can levy.

It is significant that this legal action was brought by state attorneys general — the guardians of the economic and legal interests of their respective states — rather than solely by large technology companies. That signals that the surcharge's effects were felt well beyond Silicon Valley: in regional hospitals, public research universities, and school systems struggling to recruit specialized teachers. The surcharge affected real America, not just coastal tech.

The Chamber of Commerce on a parallel front: two simultaneous challenges

Simultaneously with the attorneys general's lawsuit, the U.S. Chamber of Commerce had also challenged the surcharge in court. In December 2025, a federal judge in Washington, D.C., issued a contradictory ruling — upholding the surcharge and rejecting the Chamber's injunction request. That judge concluded the administration had the right to impose the measure under federal immigration law. The Chamber had appealed.

This split in jurisprudence — one ruling striking down the surcharge in Boston, another upholding it in D.C. — is precisely the type of divergence that leads to Supreme Court review. Immigration law specialists believe it is "highly likely" the Supreme Court will ultimately be called upon. Until then, the administration appealed Sorokin's ruling, and the appeals court could grant a stay during which the surcharge would be reactivated. Legal uncertainty remains.

The concrete impact on employers and workers

Hospitals, universities, and schools directly hit

Since the surcharge took effect in September 2025, the hardest-hit sectors have been those most dependent on H-1B workers for positions that find no qualified American candidates. Hospitals — particularly in rural areas and small towns — struggled to recruit specialist physicians, specialized nurses, and medical technicians. Entire departments at some facilities were reduced or closed for lack of staff.

Research universities saw promising doctoral candidates and postdoctoral researchers choose Canadian, Australian, or European institutions offering simpler, less costly visa conditions. In a highly competitive global talent market, a $100,000 surcharge represented a massive competitive disadvantage for American institutions against their international rivals. Schools struggled to recruit mathematics and science teachers — two fields where the United States already faces a structural shortage of qualified candidates.

85 payments in nine months: the reality of impact

According to a March 2026 filing by USCIS (the agency responsible for visas), the agency had received only 85 payments of the $100,000 surcharge since it took effect in September 2025. That figure, compared to the several hundred thousand H-1B petitions normally processed annually, reveals that the surcharge had not merely discouraged some employers. It had discouraged nearly all of them. Most had chosen to wait for the outcome of the litigation, hire less-qualified American candidates, or delay their hiring plans.

Attorney Ann Lee advised her employer clients to be careful about letting their foreign employees travel abroad during the period of legal uncertainty: "You wouldn't want to be caught off guard, stuck outside the country" if the surcharge was reactivated while an employee was overseas. That warning illustrates the operational uncertainty created by a legally contested policy: companies can no longer plan their essential employees' travel with confidence.

The Trump administration's reaction: displayed confidence, real uncertainty

The White House promises appeal and projects confidence

The White House's official reaction to Judge Sorokin's ruling was predictable: spokesperson Taylor Rogers declared the administration was "confident the ruling would be reversed on appeal." That projected confidence is rhetorically necessary — acknowledging the legal weakness of the measure would have been politically costly with the electoral base supporting immigration restrictions. But on substance, that confidence is challenged by the very logic of Sorokin's ruling.

The judge applied the February 2026 Supreme Court reasoning on tariffs. If that argument convinced the Supreme Court on tariffs, it is difficult to imagine why it would not apply to the H-1B surcharge. The administration will need to present an argument distinguishing the two cases convincingly. Attorney A. James Vazquez-Azpiri acknowledged that an appeal would "almost certainly" be filed immediately by the government — but offered no guarantee it would succeed.

The appellate stay: the surcharge could temporarily return

The most immediately important aspect for employers is the appellate stay. Once the administration appealed Sorokin's ruling, the First Circuit Court of Appeals maintained the surcharge's invalidation in effect — meaning USCIS could not, for now, collect the $100,000. But if the appellate court decides to grant a stay pending its review, the surcharge would be reactivated.

This scenario — invalidation, appeal, potential stay, temporary reactivation — illustrates the chronic instability created by an immigration policy that advances through presidential proclamations challenged in court rather than through stable legislation. For companies that must plan their hiring months in advance, this uncertainty carries a real and documented cost. It is not immigration reform. It is management by chaos.

The broader context: Trump immigration policy and skilled workers

Internal tension between anti-immigration and pro-business forces

The H-1B surcharge reveals a deep tension within Trump's own political coalition. On one side, a nationalist electoral base that perceives immigration as a threat to American workers — including highly skilled immigration. On the other, a base of technology entrepreneurs and investors who support Trump for his economic deregulation, but who depend directly on the H-1B program to maintain their companies' competitiveness.

This tension is not new. It erupted publicly in January 2025 when Elon Musk and other technology figures close to Trump publicly defended the H-1B program against nationalist critics within the American right. The $100,000 surcharge represented a temporary victory for the nationalists. The Sorokin ruling represents, for now, a victory for the pro-business camp. The internal war within the Trump coalition on this issue is far from over.

The H-1B program and the global technological competition with China

In the context of the technological and geopolitical rivalry between the United States and China, the H-1B surcharge took on an additional strategic dimension. China is investing massively to attract the world's best engineers and researchers — including those with American training who choose to return to Asia. The United States has traditionally enjoyed a considerable competitive advantage in retaining these talents, thanks in part to the H-1B program as a pathway to permanent residency.

By making the H-1B program extremely costly, the $100,000 surcharge pushed talent toward Canada, Australia, Germany — and potentially toward China. That is precisely the opposite of what a coherent geopolitical strategy against China should do. Trump's immigration policy on skilled workers directly contradicts his policy of technological confrontation with Beijing. This incoherence is not an administrative error. It is the consequence of a policy dictated by domestic political imperatives rather than coherent strategic vision.

The future of the H-1B program under the shadow of litigation

The road to the Supreme Court: a likely path

With two contradictory federal court rulings — one striking down the surcharge in Boston, the other upholding it in Washington, D.C. — the Supreme Court will likely be called upon to resolve this question. The exact timeline depends on the speed of the appeals and the decisions of the intermediate appellate courts. But the fundamental question — the scope of presidential authority to impose immigration surcharges — is significant enough for the Supreme Court to want to settle it.

A definitive Supreme Court ruling would clarify the situation for employers, H-1B workers, and federal agencies. It would delimit what future administrations can do by executive order in the immigration domain. And depending on its content, it could either validate or definitively invalidate the Trump strategy of using executive orders to impose immigration measures Congress has not authorized. That is a major institutional stakes issue that goes well beyond the question of H-1B visas.

What employers need to know now

In the immediate term, immigration law specialists converge on their advice: employers should not pay the $100,000 surcharge while the Sorokin ruling is in effect — but must closely monitor the appeals' progression. If a stay is granted by the First Circuit, the surcharge will be reactivated immediately. Employers with H-1B workers traveling abroad must be particularly vigilant: a change in legal status while an employee is outside the United States could create significant problems upon return.

The reality is this: the legal instability created by the Trump administration's immigration policy imposes a considerable planning and legal risk cost on American companies, regardless of the final litigation outcome. Even if the surcharge is definitively struck down, the months of deterrence will already have had their effects on hirings that will not happen, researchers who will have chosen other countries, talents who will have decided not to file H-1B applications. These costs are real. They are measurable. And they are the direct consequence of a policy imposed by executive order without solid legal foundation.

The worker protection argument: rebuttal by data

What the H-1B salary data actually shows

The Trump administration's central argument for justifying the surcharge was that the H-1B program allowed companies to replace American workers with cheaper foreign labor. That argument is contradicted by data from USCIS and the Department of Labor. H-1B visa holders are paid, on average, salaries significantly above the median wages of their sectors. The minimum salary level required for an H-1B is substantially higher than the sectoral median.

The reality is the inverse of what the administration claimed: H-1B workers create American employment rather than destroy it. Startups founded by immigrants — many of whom came through the H-1B program — employ large numbers of American citizens. Academic studies have documented that each H-1B worker in the technology sector is associated on average with the creation of several additional positions filled by American workers. This economic reality is well established. The administration prefers to ignore it.

Why protecting American workers actually requires the opposite

If the real objective were to protect American workers, the right approach would be to strengthen sanctions against the rare employers who abuse the program to underpay foreign workers, to better monitor wage compliance, and to invest in training Americans in the highly demanded technical skills. These measures are more politically complex and less spectacular than a $100,000 surcharge. But they would have real effects on real workers.

Instead, the administration chose a measure whose documented effects are: increasing costs for rural hospitals, reducing the recruitment capacity of research universities, discouraging technology talent from going to the United States, and helping America's geopolitical competitors recruit those same talents. That is not protection of American workers. That is economic identity politics — measures designed to signal an attitude, not to produce results.

The verdict of economists and stakeholders on the ground

A rare consensus spanning private sector, public institutions, and academic experts

Rarely has an immigration policy generated such broad critical convergence. Academic economists specializing in immigration documented the surcharge's negative effects on skilled talent flows to the United States. Professional associations — from medicine to engineering to life sciences — denounced the concrete effects on their recruitment capacity. The 20 state attorneys general, representing economies and political profiles as diverse as could be, found enough common ground to bring the litigation together.

This convergence is remarkable. The H-1B program sometimes divides economists on fine policy questions — salary levels, definition of eligible specialties, abuse risks. But on the question of the $100,000 surcharge, the consensus was almost universal: it was a measure with documented negative effects, no clearly established benefits for American workers, and seriously questionable legality. Judge Sorokin confirmed the legal doubt. The negative economic effects did not wait for his decision to manifest.

Silicon Valley, startups, and the future of American innovation

Beyond hospitals and universities, it is the entire American innovation ecosystem that suffered from the uncertainty created by the surcharge. Startups — which often have limited resources and are precisely the companies most likely to create tomorrow's jobs and industries — could not absorb a $100,000 surcharge for every qualified foreign worker they wished to recruit. Some delayed their hiring plans. Others considered opening offices in Canada or Mexico to circumvent the constraint.

American innovation has rested for decades on a winning combination: world-class higher education institutions, a developed venture capital ecosystem, an entrepreneurial culture favorable to risk-taking — and an immigration policy that attracted the world's best talents. Eroding that last element through prohibitive surcharges and chronic legal instability is undermining the very foundations of American competitive advantage in the twenty-first-century economy. The Sorokin ruling temporarily blocked that erosion process. Temporarily.

What remains uncertain: the appeal and its consequences

The First Circuit and the question of the stay

In the weeks and months following the Sorokin ruling, the U.S. Court of Appeals for the First Circuit must rule on the government's appeal. The most pressing question is the stay: will the appeals court grant a temporary suspension of the Sorokin ruling while it reviews the appeal? If so, the $100,000 surcharge will be reactivated, creating a new period of uncertainty for employers. If not, the Sorokin ruling will remain in effect while the appeal is decided.

Arguments for and against the stay will be evaluated by standard criteria: the likelihood of success on appeal, the irreparable harm that would result from the absence of a stay, and the public interest. The government will argue that the surcharge represents a legitimate immigration policy tool and that its absence creates a damaging precedent. Opponents will argue that an unconstitutional surcharge should not be maintained during appeal and that documented economic damages to employers are real.

What this ruling means for Trump's immigration policy

The Sorokin ruling is as significant for what it says about the limits of presidential powers in immigration as for its direct effects on the H-1B surcharge. By confirming that the president cannot levy a tax — even one disguised as an immigration surcharge — without congressional authorization, Sorokin laid a principle that could limit other administration immigration measures. The argument is general: if it is essentially a tax, the president lacks the authority to impose it unilaterally.

This logic could apply to other measures the administration envisions in the immigration domain. It is a reminder that even in a domain where the president holds extensive powers — foreign policy, border control — there are clear constitutional limits. These limits are not bureaucratic obstacles to governmental efficiency. They are the fundamental guarantees of American democracy against the concentration of power in the executive branch.

The impact on foreign workers themselves

Individuals caught in a system of chronic uncertainty

Behind the statistics and legal arguments, there are real people: the H-1B workers themselves. Engineers, physicians, researchers, teachers who built their lives and careers in the United States, who contribute to the American economy, who pay taxes, who raise children who will become Americans. These people experienced the $100,000 surcharge as a direct threat to their status and their future — not because their employers had to pay the surcharge, but because it made their presence economically uncertain in the eyes of the companies employing them.

The chronic legal uncertainty — the surcharge is legal, then illegal, it may be reactivated — is particularly grueling for people who planned their lives around a immigration status whose stability is now uncertain. Workers who had plans for permanent residency, visa renewal, and professional travel find themselves in a state of permanent uncertainty. This human dimension is too often absent from immigration policy debates, which concentrate on money and legal arguments. It deserves to be named.

The promise of America and the reality of 2026

America built a significant part of its economic and scientific greatness by attracting the world's best talents — from Europe, Asia, Latin America, Africa. This capacity for attraction rests on a promise: come here, build your life, contribute to society, and you will be welcome. The $100,000 surcharge sent a radically different message: even if you are qualified, even if your employer wants you, even if you have something to offer — entry will cost a fortune and your status will remain precarious.

The Sorokin ruling has, for now, restored part of that promise. But the uncertainty of the appeal, the possibility of a stay, the likelihood of Supreme Court review — all of this maintains the precarity. And the underlying question remains open: what America do we want to be in the global competition for talent? The one that attracts, or the one that repels? The economic data gives a very clear answer. The Trump administration's policy appears unwilling to hear it.

The impact on universities and American scientific research

Brain drain toward America's competitors

The $100,000 surcharge had particularly damaging effects on American scientific research institutions. Research universities in states like Massachusetts, California, and Michigan reported losing candidates to Canadian and Australian institutions that imposed no such financial obstacle. These candidates — doctoral students in chemistry, molecular biology, computer science — represent the long-term pipeline of American innovation. Losing them means losing not current jobs but future scientific breakthroughs.

Data on patent filings and scientific publications show that foreign-born workers represent a disproportionately high share of American innovation. In fields like artificial intelligence, semiconductors, and biotechnology — precisely the sectors where the rivalry with China is most intense — this contribution is even more pronounced. Discouraging these talents from going to the United States through a prohibitive surcharge is not economic protection. It is unilateral disarmament in the technological war against Beijing.

The reaction of major research universities

Associations representing major American research universities — including the Association of American Universities — had publicly denounced the surcharge as a threat to the scientific competitiveness of the United States. These institutions documented concrete cases: laboratories unable to recruit specialized post-doctoral researchers, mathematics and science departments unable to attract qualified professors, federally funded research programs unable to find qualified American candidates in highly specialized fields.

These accounts were not speculation about future effects. They documented real and immediate effects, measurable in terms of vacant positions, slowed research programs, and federal grants underutilized for lack of qualified personnel. The surcharge had not protected a single American position. It had created vacancies in positions no one else wanted to fill.

The H-1B program and health sectors in a recruitment crisis

Rural hospitals that can no longer recruit physicians

One of the most concrete and humanly significant consequences of the $100,000 surcharge concerns hospitals in rural and semi-rural areas that use the H-1B program to recruit specialist physicians — cardiologists, anesthesiologists, surgeons — in regions that cannot attract enough American physicians. These hospitals, often already financially fragile, could not absorb a $100,000 surcharge per hire. For them, the measure was simply prohibitive.

Concretely, entire departments at regional hospitals were reduced or temporarily closed. Patients in rural communities were forced to travel increasingly long distances for specialized care. Surgeries were postponed. Wait times lengthened. These effects on real patients, in real communities, are documented but rarely mentioned in the public debate on H-1B policy — which focuses primarily on large coastal technology companies.

Foreign physicians in American medicine

Foreign-born physicians represent approximately one quarter of all practicing physicians in the United States, according to data from the American Medical Association. In rural areas and underserved communities, that proportion is even higher — these physicians often accepting positions in regions that American physicians trained at major universities tend to avoid. Imposing a $100,000 surcharge on their recruitment creates an additional obstacle to healthcare access for America's most vulnerable populations.

This reality directly contradicts the administration's rhetoric that the surcharge protected American workers. There are no American physicians who would have taken these positions if foreign candidates had not been available. These positions would simply have remained vacant. And American patients — often rural Americans, often Republicans — would not have had access to the care they needed. The ideological immigration policy had very concrete victims within Trump's own electoral base.

The role of Congress: why legislation is preferable to executive orders

What Congress could do — and is not doing

The Sorokin ruling clearly identified the structural problem of American immigration policy by executive order: the president does not have the authority to act unilaterally on questions that fall within the legislative branch's purview. The constitutionally correct solution for reforming the H-1B program — whether to strengthen it, restrict it, or modify it — would be an act of Congress, negotiated between both chambers, with public hearings, expert testimony, and a democratic vote. That process is slow. It is difficult. It requires compromise. But it produces stable and legitimate rules.

The U.S. Congress has not fundamentally reformed the legal immigration system in decades. Bipartisan attempts at comprehensive reform have regularly failed under divergent political pressures. In this legislative vacuum, successive administrations have used presidential executive orders to impose changes that Congress could not or would not legislate. This cycle — executive orders, litigation, invalidations, new executive orders — is fundamentally unstable. And it is employers, workers, and institutions that pay the price.

Is legislative H-1B reform possible?

Members of both parties have periodically proposed H-1B program reforms — to better target genuinely specialized skill levels, to strengthen wage protections, to reduce processing delays. These proposals are not without common sense. But they have never found enough support to be adopted, partly because the debate on legal immigration is poisoned by the debate on undocumented immigration, and partly because each side prefers partisan policy to bipartisan legislative reform.

In the meantime, American immigration policy for skilled workers continues to evolve through executive orders, litigation, invalidations, and new executive orders. The Sorokin ruling is a temporary correction of a presidential excess. It is not a systemic reform. Only Congress can produce the legislative stability employers, workers, and institutions need to plan long-term. And until Congress acts, we are condemned to this cycle of instability.

Conclusion: A judicial victory, not yet a political one

What the Sorokin ruling changes — and what it does not

Judge Leo Sorokin's ruling of June 8, 2026 is a clear victory for those defending American economic competitiveness, technological innovation, and the rights of skilled foreign workers. It returns the power to levy taxes to where the Constitution has always placed it: Congress. It demonstrates that even in immigration — a domain where the president holds extensive powers — constitutional limits exist and courts enforce them.

But it does not, by itself, change the general direction of the Trump administration's immigration policy. Other restrictive measures on skilled workers remain in place or are under consideration. The uncertainty created by years of court-contested policies has already had its effects on hirings that never happened, talents who chose other countries, innovation projects that were delayed. These effects do not disappear with the Sorokin ruling. They accumulate.

What a sound immigration policy for the American economy should be

A sound immigration policy for skilled workers should be stable, predictable, grounded in real economic data, and built on legislative consensus — not on presidential executive orders contested in court. It should clearly distinguish between real abuses of the H-1B program (which exist and deserve a response) and the program's essential economic function for thousands of employers. It should treat skilled foreign workers not as threats but as the contributors to the American economy that they are.

That is not what we have had since September 2025. What we have had is an illegal surcharge that discouraged hiring in rural hospitals, research universities, and technology startups, that helped America's geopolitical competitors recruit talent America was repelling, and that was ultimately struck down by a federal court as unconstitutional. That balance sheet is a complete failure, on every level. The Sorokin ruling does not erase it. It confirms it.

By Maxime Marquette, columnist

Columnist's transparency note

My stated position on immigration policy

I support an immigration policy that attracts qualified talent and recognizes their contribution to the economy. This position leads me to view the H-1B surcharge as a public policy error, independent of its legal question. I acknowledge that the H-1B program can be abused in some cases and that targeted reforms are legitimate — but the $100,000 surcharge is not a targeted reform.

What I do not know

I do not have access to complete data on the surcharge's effects on specific affected labor markets, nor to economists' detailed projections on jobs lost due to the deterrence of H-1B workers. I do not know how the First Circuit Court of Appeals will rule on the government's appeal.

Sources

Primary sources

SHRM — Federal Court Strikes Down $100K H-1B Fee — June 9, 2026

Wall Street Journal — Judge Strikes Down Trump Administration's $100,000 H-1B Visa Fee — 2026

CNBC — Trump H-1B visa fee: government appeals — June 11, 2026

Secondary sources

Ellis Law Group — Judge Strikes Down $100,000 H-1B Visa Fee — 2026

McBean Law — Weekly Immigration News June 12, 2026

The Straits Times — US judge blocks Trump's $100,000 fee for skilled visa applications — 2026