In response to an executive order overhauling the H-1B visa process for highly skilled workers entering the United States, a coalition of health care providers, nonprofits, labor unions and schools — including the Colorado educational group Global Village Academy Collaborative (GVAC) — filed Global Nurse Force v. Noem in October in the Northern District of California.
The plaintiffs are challenging the order’s increase of the H-1B fee from a few thousand dollars to $100,000. According to the Trump administration, changes to the H-1B visa application process, which took effect on Sept. 21, are intended to improve visa “selection integrity.”
GVAC, based in Thornton, said changes to the visa detrimentally impact the educational collaborative’s model, which features classrooms led by highly trained native-language speakers.
Michael Henderson, executive director of GVAC, explained, “The decision by the GVAC board of directors to join the suit was based on our need to attract native language speakers for our language immersion programming, which often requires onboarding employees using the H1-B visa process. This increased fee would have a negative impact on our programming and operating budget.”
More litigation has followed. On Oct. 16, the U.S. Chamber of Commerce filed a legal challenge to the $100,000 fee, arguing the increased fee overrides the provisions of the Immigration and Nationality Act governing the H-1B program. The H-1B program was established in 1990 in an update to the Immigration and Nationality Act of 1952.
Neil Bradley, executive vice president and chief policy officer at the Chamber, stated, “The new $100,000 visa fee will make it cost-prohibitive for U.S. employers, especially start-ups and small and midsize businesses, to utilize the H-1B program, which was created by Congress expressly to ensure that American businesses of all sizes can access the global talent they need to grow their operations here in the U.S.”
A ‘most unusual executive order’
Roger Tsai of Faegre Drinker’s Denver office said the presidential proclamation is “the most unusual executive order” of his 20-year practice in immigration law.
“The new size of the payment and the unusual procedure around the proclamation immediately raised questions for many of us in immigration law,” Tsai said. Procedurally, the order bypassed the usual 60-day notice-and-comment rulemaking, seemingly in violation of the Administrative Procedure Act of 1946.
Immigration attorneys have suggested the $100,000 “payment,” as it is called in the order, is severely disproportionate to previous increases and inconsistent with the intention of the H-1B visa. Tsai said the word “payment” is used to “circumvent existing federal regulations.”
Immigration attorneys expect an increasing number of challenges and appeals. The order “may potentially fail on the basis that the president did not provide the regulatorily required notice-and-comment period required for fee increases,” Tsai said.
Highly skilled workers for specialized roles
Until the proclamation took effect, H-1B petition fees ranged between $2,500 and $7,000, depending on company size. The new fee does not apply to current H-1B holders or renewal, extension or transfer petitions.
Aside from the increased fee, the executive order asserted the H-1B visa process has been abused both by welcoming “lower-skilled workers” to the United States and by introducing a glut of “highly skilled” workers. Tsai said, “The median wage for H-1B workers was $108,000 in 2021. H-1B workers are disproportionately highly educated, highly compensated workers, often filling niche roles where employers cannot locate a qualified U.S. worker.” He added with a laugh, “If employers could hire local Americans, they would be happy to do so in a heartbeat — rather than pay the required government filing and legal fees.”
Colorado employers in health care, academia, critical infrastructure, aerospace and technology are especially affected by the increased petition fee, Tsai said, as employers in these fields have traditionally looked to H-1B visas to fill specialized roles. Under current law, the H-1B program is capped annually at 65,000 visas for foreign workers who hold a bachelor’s degree or its equivalent, with an additional 20,000 available for applicants who have earned a master’s degree or higher from a U.S. institution.
In response: academic and employer options
Tsai is particularly concerned about the impact of the increased fee on academia in Colorado. The University of Colorado Boulder and the University of Denver “bring in substantial numbers of international students in STEM fields in graduate degree programs, and nationwide, about a million enter the U.S. annually,” he said. “Our public education system has invested heavily in these highly talented immigrant students, who occupy half of the STEM graduate degree programs. The question is whether the U.S. will enable them to keep their talent here and contribute to the U.S.” He noted that companies that have traditionally invested in recent graduates on H-1B visas have seen a correlation with growth and innovation.
“We expected headwinds, but this was a surprise,” he said. Until this fall, despite criticism of other visas and immigration policies, Democrats and Republicans generally viewed the H-1B visa positively. In fact, in December 2024, President Donald Trump told the New York Post that he “always liked the (H-1B) visas” and had “always been in favor of the visas.”
While employers are still weighing options, multisite companies are considering shifting foreign workers to locations outside of the United States. Others are making contingency plans to reduce their number of foreign workers or use other types of visas. In the meantime, Tsai said companies with employees on visas should prepare for more scrutiny, and he expects the percentage of H-1B approvals to drop significantly.
“On the emotional side, I am working with a lot of employers who want to continue to retain the best talent while being sensitive to the concerns of immigrant workers,” he said. “Some of these rules were written in specific ways that will uproot lawful, highly educated workers overnight. This is what is keeping employers up at night.”
“We are at mile five of a marathon,” Tsai said. It’s early in the process, and a lot could still happen.”