The Trump administration has asked the US Court of Appeals for the Ninth Circuit to overturn a federal judge's order that froze agency policies implementing a $100,000 charge on businesses that hire H-1B visa workers from outside the United States. The notice of appeal, filed Oct. 9, challenges a Sept. 30 ruling by Judge Haywood Gilliam Jr. of the US District Court for the Northern District of California.
Government attorneys also asked the appeals court to stay Gilliam's order while the case moves forward, pointing to similar challenges pending in the First and D.C. Circuits and arguing the dispute will likely end up before the Supreme Court. For now, the blocked guidance remains blocked — nothing about the fee's enforcement status has changed since the district court's ruling.
What the Government Is Appealing
The case, Global Nurse Force v. Trump, is pending in the Northern District of California under case number 4:25-cv-08454. The administration's notice of appeal, filed Oct. 9, seeks Ninth Circuit review of Gilliam's order blocking enforcement of US Citizenship and Immigration Services (USCIS) and Customs and Border Protection (CBP) memoranda and guidance tied to the $100,000 fee.
That guidance addressed practical questions such as how employers would be required to pay the fee. Gilliam found on Sept. 30 that the policies could not be enforced — whether under President Donald Trump's original September 2025 fee proclamation or a later extension of it — until the government completed notice-and-comment rulemaking, a formal process in which federal agencies must publish proposed rules and accept public input before they take legal effect.
The Stay Request
Separate from the appeal itself, government attorneys asked the Ninth Circuit to stay, or pause, Gilliam's order while the litigation continues. A stay would not resolve the underlying legal dispute but could allow enforcement of the fee guidance to resume while the appeal is decided.
Why the Government Points to Other Circuits
In requesting the stay, government attorneys noted that the First Circuit and the D.C. Circuit are hearing similar challenges to the same fee policy. They argued that the dispute will likely reach the Supreme Court and that pausing Gilliam's order in the meantime would conserve the resources of both the courts and the parties involved.
Current Enforcement Status
As of the appeal filing, the USCIS and CBP guidance implementing the $100,000 fee remains blocked. No ruling on the stay request or the merits of the appeal had been issued at the time of reporting. That means employers are not currently required to comply with the frozen guidance, though the government's pending motions could change that status if granted.
Who the Guidance Targets
The fee guidance is directed at businesses that hire H-1B visa holders from outside the United States. The H-1B program allows US employers to sponsor foreign workers in specialty occupations, and the blocked guidance would have governed how those employers pay the $100,000 charge tied to the program under the proclamation and its extension.
What Remains Unresolved
Several questions remain open based on the current record. It is not established whether the Ninth Circuit will grant the government's stay request, how the parallel First and D.C. Circuit cases will be resolved, or whether differing outcomes among the circuits could push the dispute toward faster Supreme Court review. No timeline for any of these steps has been reported.
Clinch Law Legal Analysis
Sources
This article provides general information and does not constitute legal advice. Immigration outcomes depend on individual facts and current law.
The Trump administration has formally appealed the federal court ruling that blocked enforcement of the $100,000 H-1B fee policies, filing a notice of appeal with the Ninth Circuit on October 9, 2026. For employers and H-1B workers, the practical reality has not changed: the fee-related USCIS and CBP guidance remains blocked, and the government is separately asking the appeals court to stay that block while litigation continues. Employers should not assume the fee is permanently gone, nor that it will resume on any set date. Petitions and filings should proceed under current guidance until a court or agency announcement says otherwise.
The reported basis for the government's position is that notice-and-comment rulemaking has not been completed, which is why the district judge froze enforcement, and that the dispute will likely reach the Supreme Court given parallel proceedings in the First and D.C. Circuits. The competing view, implicit in the injunction, is that the fee policies could not lawfully take effect without that rulemaking process. Whether the Ninth Circuit will stay the injunction, how parallel circuit rulings might diverge, and how quickly the Supreme Court might weigh in are all unresolved. The reporting does not establish a timeline, so affected parties should monitor court dockets and avoid premature compliance or avoidance decisions based on assumptions about the appeal's outcome.
Questions Clients Are Asking#
Is the $100,000 H-1B fee currently being enforced?
No. According to the reporting, the fee-related USCIS and CBP memoranda and guidance remain blocked following Judge Haywood Gilliam Jr.'s September 30, 2026 order in the Northern District of California, and that block was still in place when the government filed its October 9, 2026 notice of appeal.
What did the government ask the Ninth Circuit to do?
The government filed a notice of appeal on October 9, 2026 asking the Ninth Circuit to overturn Judge Gilliam's ruling, and its attorneys also requested a stay of his order, arguing this would preserve court and party resources while similar cases proceed in the First and D.C. Circuits.
Why did the district court block the fee policies in the first place?
Judge Gilliam found that the USCIS and CBP guidance implementing the fee, whether under the original September 2025 proclamation or its extension, could not be enforced until notice-and-comment rulemaking was completed, according to the reporting.
Could this case end up at the Supreme Court?
Government attorneys stated in their stay request that the dispute will likely reach the Supreme Court, noting that the First and D.C. Circuits are hearing similar challenges to the fee. The reporting does not establish a timeline or confirm that review has been sought or granted.
Should employers pay the $100,000 fee now to avoid future penalties?
The reporting does not address individual compliance strategy or state what employers should do. It only establishes that enforcement guidance is currently blocked and that a stay request and appeal are pending. Employers should treat the fee as unenforceable under the blocked guidance unless a court or agency announcement changes that status.