Last week brought some clarity to employers about the timeline for federal courts' initial decisions on whether the President can restrict access to H-1B visas by imposing a $100,000 fee on employers seeking to sponsor an employee for an H-1B visa. The judge hearing a legal challenge to that fee ordered that all legal briefing in the case be completed by December 8, giving an early indication of how quickly employers and H-1B visa holders may have clarity about the legality of that fee as they plan for hiring, promotions, or transfers in 2026.
As background, on September 19, President Trump issued Presidential Proclamation 10973, which restricts the entry of certain H-1B workers from outside the United States unless their petitioning employer pays a $100,000 fee to the United States Treasury. Less than a month later, the United States Chamber of Commerce (the Chamber) and the Association of American Universities (AAU) filed a lawsuit in the United States District Court for the District of Columbia challenging the legality of the Proclamation, asserting that imposing a $100,000 fee violated both the Immigration and Nationality Act, which already specified the fees to be paid for H-1B petitions, and the Constitution, which generally prevents the Executive from imposing fees or taxes without authorization from Congress.
The Chamber and AAU also filed a motion for a preliminary injunction, which would be an order from the court pausing the fee while the litigation went on. In the alternative, the motion asked the court to proceed directly to a decision in the case, known as summary judgement, because there were no issues of fact and only issues of law to be decided by the court. The government responded with a request for more time to reply to the motion, pointing to the ongoing government shutdown making it more challenging for the Department of Justice's lawyers to consult with other agencies about the litigation.
Last week, the judge hearing the case, Judge Beryl Howell, issued an order denying the federal government's request to delay briefing. Instead, Judge Howell issued an order treating the Chamber/AAU motion as a summary judgement motion and issuing an expedited schedule for the parties' summary judgment briefing. Judge Howell's willingness to forgo a preliminary injunction hearing and move directly to summary judgement is a good sign that the judge agrees with the Chamber and AAU that there are no disputes about the factual issues in the case. Her order also pointed out that the Chamber and AAU had demonstrated that they face immediate harm from the Proclamation, meaning that she should move the case forward quickly in spite of the shutdown.
Judge Howell's order specifies that the government must file its opposition to summary judgement by November 28, 2025. The Chamber and AAU are allowed to file a reply to the government's arguments, due December 8, 2025. Following completion of briefing, the court will decide whether to hold oral argument, though as noted above, Judge Howell has recognized that the Chamber and AAU have established that they are entitled to prompt judicial review. As such, the judge may be prepared to issue a decision before the end of December.
If the Chamber and AAU prevail, the court could invalidate or enjoin enforcement of the Proclamation nationwide. Regardless of the initial decision, the losing party will have the right of appeal to the District of Columbia Circuit Court. The DC Circuit may allow the Proclamation to stay in effect, or may allow the Proclamation to stay blocked while the litigation proceeds in the DC Circuit. A final decision would then be more than a year away, but Judge Howell's initial decision – and whether the DC Circuit allows that decision to go into effect while it considers the appeal – will provide employers and H-1B visa holders with clarity on how long they will need to be concerned about the Proclamation and its $100,000 fee.
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