Immigration law often hides in the details of statutory authority. When the White House announces changes to visas, the form of the announcement – executive order or presidential proclamation – signals the legal foundation beneath it. With the recent H-1B fee increase, the administration chose a proclamation. That choice tells us a great deal about power, process, and potential challenges.
Executive Orders Talk To the Agency
An executive order directs the federal bureaucracy. It tells agencies how to interpret or enforce existing law. For example, a president may issue an executive order instructing the Department of Homeland Security to review fraud detection in the H-1B program. An executive order does not create new legal obligations for the public. It organizes how agencies carry out duties Congress has already assigned.
Presidential Proclamations Talk to the Public
A presidential proclamation addresses the public. Sometimes proclamations carry symbolic weight only, like designating a holiday. Other times, proclamations carry legal force because Congress has granted the president authority to regulate entry into the United States.
The Immigration and Nationality Act (INA) contains one of the broadest delegations of power in American law. Under INA § 212(f), the president may “suspend the entry of all aliens or any class of aliens” or “impose on the entry of aliens any restrictions he may deem appropriate” whenever he finds their entry would harm the national interest. Courts, including the Supreme Court in Trump v. Hawaii, have read this provision as nearly unlimited:
(f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate...” INA Sec. 212(f), 8 USC 1182(f). (Emphasis added)
Why the H-1B Fee Increase Came by Proclamation
The administration framed the H-1B fee increase as a condition of entry rather than as an internal agency fee. By proclamation, the president declared that certain noncitizens must pay additional costs before they qualify for admission. This maneuver shifts the action away from the usual rulemaking process under the Administrative Procedure Act and places it directly under presidential power that Congress delegated tot he President.
Can Courts Draw a Line?
Litigants may contest this use of § 212(f). They may argue that the text and the context of Subsection (f) does not allow imposition of fees. Instead, Congress intended “restrictions on entry” to mean bans or conditions tied to health and security, not revenue measures. Additionally, litigants may argue the separation of powers as the Constitution grants Congress the power of the purse. Allowing the president to raise money through immigration fees risks upsetting that balance. Another argument may be that the process is insufficient, as under the APA, Agencies typically set fees through public notice and comment. A proclamation bypasses those safeguards.
The government may defend the proclamation pointing to the broad language of 212(f), which endorses “any restrictions,” and that this broad statement covers financial conditions. Courts may hesitate to second-guess the president when the INA uses such sweeping words. If challenged, District courts may initially block the fee increase as exceeding presidential authority. But on appeal, the government will point to Trump v. Hawaii and argue for broad deference. The outcome remains uncertain because this is the first time a president has used § 212(f) for revenue-like conditions rather than outright bans.
Practical Takeaways for Employers and H-1B Workers
Employers should budget and plan now for increased filing fees. Even if litigation slows implementation, businesses that prepare financially will avoid disruption. Additionally employer should monitor litigation and even become parts of an appropriate class action. Courts could enjoin the fee increase temporarily. Employers and workers should track cases closely because outcomes may shift deadlines and obligations.
At this time employers must plan for compliance. Unless and until a court blocks the proclamation, USCIS and consulates will enforce the new fees. Petitioners who fail to pay risk denials or delays.
Employers and employees should seek guidance from experienced business immigration attorneys like Zneimer & Zneimer PC. Every H-1B filing already involves strategy, including eligibility, specialty occupation arguments, and documentation. Adding a moving target on fees makes experienced legal counsel even more valuable. Moreover, we strongly urge employers to develop argument that they are exempt from the fees and are working on a checklist of documents and evidence.
At Zneimer & Zneimer, P.C., we do more than follow headlines. We analyze the legal foundations, anticipate challenges, and help our clients act with confidence. Whether you are an employer planning your workforce or a professional pursuing your career in the U.S., we provide the strategy you need to adapt to rapid changes in immigration law. Contact us today to schedule a consultation. Let some of the best immigration lawyers in Chicago help you navigate the H-1B process with clarity, strategy, and strength.