Growing up, I heard many stories about the American Dream
from my parents, who arrived in the United States from Nigeria in the 1980’s on
student visas. It seems, based on their stories, that back then the pathway to
permanent residency was clearer and far less contentious. While my parents
never participated in the H-1B program - it wasn't created until 1990 – one fundamental
truth remains: America's strength has always come from welcoming those who seek
to contribute, whether through student visas in the 1980s or H-1B visas today.
The ties that bind us as humans should bring us closer
together, not drive us apart. This growing divide in the country feels
pointless when we consider that most of the issues raising dissent have common
ground solutions. Instead of creating barriers to entry through exorbitant fees,
the system could be fine-tuned, making it more equitable while still protecting
American wages and jobs, and preserving the talent that seeks to call America
home.
If care is not taken, America risks accelerating a talent
exodus that will diminish its competitive advantage for years to come. True
national security comes from economic strength and innovation leadership, not
from pricing out the very minds that have driven American breakthroughs in
medicine, technology, and research. Is America really the land of the free and
the home of the brave if it cowardly retreats behind prohibitive barriers
instead of competing on merit and opportunity?
Why This Rule
Cannot Stand
The recently announced $100,000 H-1B entry fee represents
more than just bad policy, it's likely illegal. Any legal challenge to this
proclamation would have strong grounds for securing a preliminary injunction
based on three compelling arguments.
1. Likelihood of Success on the Merits
Administrative Procedure Act Violations
The most apparent legal flaw lies in the process itself.
Rather than issuing a Presidential Proclamation late on Friday, September 19th,
to take effect just two days later Sunday, September 21st, such a drastic rule
change should have been published as a proposed regulation in the Federal
Register with opportunity for public notice and comment, as required by the
Administrative Procedure Act (APA).
The APA mandates that proposed regulations be published,
allowing the public and affected parties to submit comments. The government
would then review all comments and respond when creating the final regulation.
This proclamation's complete bypass of the notice-and-comment process
constitutes a clear APA violation and renders the rule arbitrary, capricious,
and not in accordance with law. Of course, the government’s retort could hinge
on the Proclamation being in the interest of national security, but if the grounds
for such national security concerns are solely based on what is written in the
Proclamation, such retort would not pass muster. More on this in the next
paragraph.
Existing Legal Framework Already Addresses Concerns
The Proclamation's justifications are hollow when examined
against existing law. We already have extensive provisions that require
employers pay prevailing wages specifically to protect against depression of
wages and working conditions for U.S. workers. Moreover, enforcement mechanisms
are already in place, including investigations by USCIS's Fraud Detection and
National Security (FDNS) unit and administrative proceedings by the Department
of Labor's Wage and Hour Division.
Statutory Fee Limitations
Perhaps most alarming is the Proclamation's violation of INA
Section 286(m) (8 U.S.C. 1356(m)), which is interpreted to state that
immigration fees cannot exceed the amount needed to recover the costs of
adjudication. A $100,000 fee bears no rational relationship to processing costs
and clearly violates this statutory mandate.
2. Irreparable Injury
Demonstrating irreparable harm should be straightforward.
The $100,000 per-employee fee is financially devastating for small and
medium-sized businesses, colleges, universities, and nonprofits. Many
organizations simply cannot absorb such costs, meaning they will lose access to
employees with critical expertise, knowledge, and experience.
The ripple effects would run rampant: businesses will lose
revenue, innovation will stagnate, research will suffer, and technological
development will slow. For startups and emerging companies, this fee could
prove fatal. Universities conducting cutting-edge research will find themselves
unable to attract international talent essential to maintaining America's
competitive edge.
3. Public Interest
The government will struggle to argue that this policy
serves the public interest. The proclamation relies on unsupported nativist
arguments that H-1B workers "take jobs" from U.S. workers, claims
that ignore decades of economic research showing the job-creating and
wage-enhancing effects of skilled immigration.
America's economic dominance stems partly from its ability
to attract and retain global talent. This fee doesn't protect American workers;
it rather weakens American competitiveness while other nations eagerly welcome
the innovators, researchers, and entrepreneurs it is turning away.
The Bigger Picture
This proclamation represents more than immigration policy; it's
a fundamental question about America's identity. The legal arguments against
this fee are strong, but the moral questions echo louder. America has always
been at its best, it has embraced talent from around the world, recognizing
that diversity of thought and experience drives innovation and prosperity.
The American Dream my parents pursued in the 1980s shouldn't
become a luxury item available only to those who can afford a six-figure entry
fee.
This rule won't survive legal scrutiny, and it shouldn't survive our moral scrutiny either.
P.S. If you found this blog post insightful and want to hear me yap more about this topic, I'm giving a talk in collaboration with Immigration Question on Wednesday, September 24. Register here
Funmi Oke
