Vance Wants the H-1B Gone. The Law, the Courts and Congress Have Other Ideas

A rally line with a long shadow

JD Vance did not change a single immigration rule on Thursday. He did something that, for the people who live inside the H-1B system, can feel almost as consequential: he told them where part of this administration would like the program to end up.

At an October 1 rally in Lakeland, Florida, stumping for gubernatorial candidate Rep. Byron Donalds, the vice president called the H-1B program “completely broken” and said he would be “very supportive of just eliminating it.” No sitting official at his level has gone that far. Until now, the administration’s line was that the visa was being abused and needed to be made expensive. Vance moved the conversation from repair to removal.

The timing matters as much as the words. The administration’s signature H-1B policy, the $100,000 fee on new petitions, has just lost in a second federal court. Read in that light, the remark is less a policy announcement than a marker: if the courts keep blocking the fee, the most restrictionist voices in the White House are already thinking about a bigger target.

For the hundreds of thousands of H-1B workers, their families and the employers who sponsor them, the practical message is narrower and more reassuring than the headline. Nothing about their status changed this week. What changed is the political ceiling on how far the debate can go.

Why a vice president can’t end a visa

The H-1B is not an executive program that a White House can switch off. It is a category written into the Immigration and Nationality Act, and in its modern form it dates to the Immigration Act of 1990. The annual cap of 65,000 new visas, the extra 20,000 for U.S. master’s graduates, and the lottery employers now enter each spring all flow from statute.

That means eliminating the program would take an act of Congress: a bill passed by both chambers and signed by the president. No such bill has been announced, and Vance did not promise one. He paired his remark with a more modest commitment, saying that while the program exists the priority is protecting American workers.

The gap between those two sentences is where real policy lives. An administration cannot repeal H-1B, but it has wide room to make the visa slower, costlier and harder to win. Fees, wage rules, stricter definitions of a “specialty occupation,” tougher site visits and slower adjudications can shrink the program in practice while it survives on paper. That is the tool kit to watch, far more than any talk of repeal.

The fee that keeps losing in court

The administration’s main lever so far has been price. A 2025 presidential proclamation, extended in 2026, imposed a $100,000 charge on new H-1B petitions. For a large tech firm that is a line item. For a rural hospital recruiting nurses, a school district hiring a physics teacher or a startup chasing one specialist engineer, it is often the end of the conversation.

The courts have not been kind to it. A federal judge in Massachusetts ruled against the fee earlier. Then, in Global Nurse Force v. Trump, a federal judge in Oakland vacated the agency policies used to enforce it and barred enforcement under both the original proclamation and its extension until the agencies complete notice-and-comment rulemaking.

That last condition is the heart of it. The Oakland ruling turned less on whether the government may ever charge such a fee than on how it imposed one. Agencies that skip the public-comment process required by the Administrative Procedure Act tend to lose, and this one did. The administration has not said whether it will appeal.

Plan B is already in the Federal Register

The government saw this coming. On August 25, 2026, DHS published a proposed regulation that would set a fee of $103,265 on many H-1B petitions (docket USCIS-2026-0298). The comment period closed September 24. In other words, the agency is trying to build through formal rulemaking the same fee the courts said it could not impose by policy memo.

Opposition is organized. Twenty-two state attorneys general, led by California and Massachusetts, filed comments calling the charge an unauthorized tax beyond the agency’s authority. That argument matters because it attacks substance, not just procedure. Fixing the paperwork would not answer it.

Expect the fight to follow a familiar arc. If DHS finalizes the rule, lawsuits will likely land within days, probably in the same courts that have already ruled. The open legal question becomes whether Congress ever gave immigration agencies the power to set a fee this far above processing costs. Federal courts have grown more skeptical of sweeping agency claims in recent years, and that trend does not favor the government here. DHS has given no date for a final rule.

A striking number, handle with care

The most dramatic figure in this story comes from the White House, via The National News Desk. It says approvals for new H-1B hires coming from abroad fell from roughly 35,000 to 40,000 a year before the fee to about 700 over the past year. That would be a drop of around 98 percent.

If accurate, it means the fee did more than raise costs. It came close to shutting the front door for overseas recruits, while extensions and transfers for people already here were largely spared. But the figure has not appeared in any published government data, and its definitions are unclear. Treat it as an administration talking point until USCIS releases numbers that can be checked.

The number also cuts both ways politically. Supporters of the fee will cite it as proof the policy works. Hospitals, universities and smaller employers will cite it as proof the policy blocks hiring that has little to do with the outsourcing abuses critics usually point to.

What Vance is really signaling

The H-1B has split the president’s coalition for years. One camp, rooted in the tech industry, sees skilled immigration as a competitive weapon against China. The other sees the visa as a pipeline that lets employers swap out American workers for cheaper ones. That rift burst into the open in late 2024, and it has never fully closed.

Vance has now planted himself firmly with the second camp, and he did it at a campaign rally rather than in a policy speech. That choice is telling. The line plays well with voters who feel the program has cost them jobs, and it costs nothing to say while repeal remains out of reach. It also positions him for a future in which immigration restriction is a defining party issue.

What he did not do is speak for the president. Trump has not endorsed eliminating the program, and he has at times defended bringing in skilled foreign talent. Until the White House sends Congress a bill or the president repeats the idea himself, read this as one powerful voice in an internal argument, not settled policy.

Three paths look plausible from here:

Squeeze, don’t kill. The most likely outcome. The administration keeps pursuing the fee by formal rule, tightens wage and eligibility rules, and lets the program shrink in practice. The courts become the main arena.
A legislative push. Restrictionists in Congress introduce bills to repeal or sharply cut the program. Repeal faces long odds, especially in the Senate, but the debate could yield narrower changes, such as higher wage floors or a lottery weighted by salary.
A quiet retreat. If losses keep piling up in court and employers lobby hard, the administration settles for a lower fee or a narrower scope. Vance’s comment would then age as rally rhetoric.

An appeal of the Oakland and Massachusetts rulings, and the timing of a final DHS rule, will be the earliest clues to which path is in play.

What to do now

Plan around the rules in force, not the speeches. Extensions, amendments and transfers can still be filed under current law, and nothing said in Lakeland affects pending petitions or anyone’s current status.

If you hold H-1B status:

Keep your paperwork clean: approval notices, pay stubs and your latest I-94 record. Gaps in documentation cause more trouble than political headlines.
Ask your employer whether a green card case can start or move faster. Permanent residence does not depend on the H-1B program surviving, which makes it the strongest hedge available.
Check current consular and entry rules before any international trip. Policies have shifted with little notice over the past year.

If you sponsor H-1B workers:

Track both the fee litigation and the DHS proposed rule. A final rule could bring a six-figure charge back quickly.
Budget for that possibility in any new hiring plan, and build extra time into processing schedules.
Prioritize green card sponsorship for key employees whose loss would hurt most.

The bigger lesson of this week is that H-1B policy now runs on two clocks. The political clock moves fast and loud. The legal clock, made of statutes, rulemaking and appeals, moves slowly and decides what actually happens. Families and employers should set their plans by the second one.

This article is for general information and is not legal advice. Consult an immigration attorney about your specific situation.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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