The 2025 H-1B Proclamation: Executive Power, Taxation, and Constitutional Limits

On September 19, 2025, President Donald J. Trump issued a Presidential Proclamation on Restriction on Entry of Certain Nonimmigrant Workers, which imposed an unprecedented $100,000 fee on all new H-1B visa petitions and conditioned entry to the U.S on either the payment of this fee or satisfaction of a national interest exception. The Proclamation, effective September 21, 2025, will last for a period of twelve months if there is no extension or earlier termination. 

The statutory foundation invoked in the proclamation is from section 212(f) of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1182(f). This provision grants the President authority to “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 appropriate” whenever he finds their entry would be detrimental to the interests of the United States. The language of § 212(f) has been described by the Supreme Court as a “comprehensive delegation” of power. Yet, while courts have tolerated categorical exclusions framed as national security measures, the 2025 Proclamation introduces a new dimension: it adds a fee similar to a tax on these foreign workers or the companies applying for their visas. In a 1986 opinion written for a Washington D.C. circuit court, Justice Ruth Bader Ginsburg wrote “The President’s sweeping proclamation power thus provides a safeguard against the danger posed by any particular case or class of cases that is not covered by one of the categories in section 1182(a)” [the old section 212]. Yet despite its invocation by the President as a national security interest, this maneuver raises the question whether § 212(f) authorizes fiscal conditions of the proclamation or whether such action violates Congress’s Article I taxing power which states that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises”.  

The separation-of-powers implications are important to note in this situation as well. Congress has long had a prerogative over taxation and appropriation, as evidenced by the Origination Clause of the U.S Constitution which states that “All Bills for raising Revenue shall originate in the House of Representatives”. By conditioning entry of skilled workers by way of a $100,000 fee, the President arguably exercises legislative power without a known principle to constrain its use. The nondelegation doctrine, though rarely enforced, resurfaces in contexts where executive action blurs the line between regulation and revenue-raising. As Supreme Court Justice Gorsuch warned in a dissent, open-ended delegations risk allowing the Executive to function as a legislature of one. The 2025 Proclamation may be precisely the case that tests whether § 212(f)’s power has exceeded constitutional bounds.

In addition to structural concerns, individual rights of foreign workers are affected. Equal protection principles, though greatly reduced in the immigration context, cannot be wholly disregarded. In the landmark decision Yick Wo v. Hopkins, the Supreme Court ruled that holding equal protection applies to noncitizens, and that should still  be upheld today. The practical effect of the $100,000 fee will disproportionately impact foreign nationals from developing countries, particularly Indian nationals, who comprise the bulk of H-1B petitioners. In addition, the Proclamation’s failure to indicate standards for “national interest” exceptions raises due process concerns, worsened by the administration's handling of due process in Immigration and Customs Enforcement seen throughout the past year. Here, consular officers and executive agencies are given unrestricted discretion without judicially manageable standards.

In addition to problems arising from due process, First Amendment concerns are not entirely speculative. In Kleindienst v. Mandel (1972), the Court recognized that immigration decisions can burden the associational rights of U.S. citizens. American employers, universities, and research institutions rely on H-1B professionals to facilitate speech, research, and innovation. Conditioning that collaboration on prohibitive fees imposes an effect on academic freedom and corporate speech within the United States. While the government will assert national security concerns as a compelling interest, citing American labor market shortages because of the abuse of the H-1B visa system, the indirect infringement of First Amendment values underscores the damage of the Proclamation on constitutional rights.

Litigation challenging the measure is virtually certain. Employers and foreign nationals will likely assert claims under the Administrative Procedure Act, section 706(2)(A) arguing the Proclamation is arbitrary and contrary to law. Constitutional claims in court may invoke separation of powers and equal protection rights. The threshold issue will be whether plaintiffs can establish standing and whether courts will meaningfully review the executive’s § 212(f) determinations. While Trump v. Hawaii signaled extreme deference in the President’s last term, the Court may distinguish between categorical exclusions grounded in national security and financial exactions that resemble revenue measures. As Justice Jackson warned in Youngstown Sheet & Tube Co. v. Sawyer (1952), executive “power is at its lowest ebb” when it acts contrary to the expressed or implied will of Congress. By imposing what is effectively a tax, the President may indeed be in such a zone.

Congress ultimately retains the authority to clarify section 212(f) of the INA. Legislative override is possible, though it would be politically fraught. Bipartisan cooperation about the need for comprehensive H-1B reform would be needed to find the balance between executive discretion and legislative oversight. Without such work, the judiciary may be called upon to set out the permissible scope of presidential power.

In sum, the 2025 H-1B Proclamation presents a complex issue for the separation of powers, constitutional liberties, and the future of American economic vitality. Legally, it stretches § 212(f) and will force courts to grapple with whether the President can impose what is virtually a six-figure immigration tax. Constitutionally, it raises fundamental questions about the nondelegation doctrine, equal protection, and due process. A sounder approach would involve statutory clarification of the contours of presidential authority, transparent and administrable criteria for “national interest” exceptions, and immigration policies that reinforce rather than undermine America’s role as a leader in innovation and openness.

Image by PLBechly via WikimediaCommons