On September 18, 2026,
President Donald Trump signed a proclamation extending the $100,000 payment requirement for certain H-1B nonimmigrant petitions by another 12 months, through September 21, 2027.
The extension came just days before the original September 2025 proclamation was set to expire — but in a remarkable twist of executive persistence meeting judicial resistance, the fee currently cannot be collected.
Earlier this year, a federal court ruled that the $100,000 fee was unlawful and stopped the government from collecting it. The government asked a higher court to put that ruling on hold while it appeals, and that request was denied. This means the court's decision is still in effect.
For employers and H-1B workers navigating an already complex immigration landscape, the result is a policy that exists on paper but carries no practical force — at least for now.
The Legal Saga: From Proclamation to Vacatur
The fee was originally signed on September 19, 2025, and took effect September 21, 2025, targeting certain new H-1B specialty occupation workers hired from outside the United States.
It does not apply to F-1 students changing status inside the U.S., to extensions or renewals for current H-1B holders, or to change-of-employer petitions for beneficiaries already in the country.
The legal challenges came swiftly and from multiple directions.
Twenty states, led by California and Massachusetts, challenged the policy in federal court, arguing that the administration exceeded its statutory authority and violated the Administrative Procedure Act (APA).
The states also alleged that the policy would significantly impair their ability to recruit and retain highly skilled workers for public universities, educational institutions, and healthcare systems.
U.S. District Judge Leo T. Sorokin vacated the policy on June 8, ruling it functioned as a tax the executive branch had no authority to impose without Congress.
The court also declared the policy to be in excess of statutory authority, procedurally deficient, and arbitrary and capricious, and therefore unlawful under the APA.
What followed was a procedural back-and-forth.
Judge Sorokin temporarily stayed his own decision, reinstating USCIS's authority to collect the fee
while the government filed its appeal. But on July 24, 2026, the First Circuit brought the stay to an end.
The appellate court determined that the government failed to make a strong showing that it was likely to succeed on the merits of its appeal regarding whether the agency acted in excess of its statutory authority.
Because the Immigration and Nationality Act does not expressly grant this fee-imposing power under the statutes relied upon by the administration, the First Circuit declined to keep the $100,000 fee in place while the appeal proceeds.
A Separate D.C. Circuit Case Creates a Split
The legal picture is complicated further by a parallel lawsuit.
On October 16, 2025, the U.S. Chamber of Commerce filed suit in the District of Columbia challenging the proclamation. The Association of American Universities later joined the case as a plaintiff.
Unlike the Massachusetts court,
the U.S. District Court for the District of Columbia upheld the presidential proclamation, rejecting challenges alleging that it exceeded executive authority or violated the APA.
With a circuit split in place and the constitutional question of executive taxing authority unresolved, this case is a strong candidate for Supreme Court review.
Why Extend a Blocked Policy?
The administration's decision to extend the proclamation is strategic, not accidental.
Extending it keeps the framework in place, so the fee could take effect quickly if an appeals court rules for the administration.
Briefing on the merits of the government's appeal in the First Circuit is expected to conclude October 16, 2026.
The White House also touted the policy's deterrent effect.
The administration cited a 92 percent reduction in H-1B registrations by the largest information technology staffing and outsourcing firms as evidence that the policy is achieving its stated goal of protecting American workers.
Consular processing requests declined by nearly 97 percent between fiscal years 2025 and 2027.
New Executive Order Adds Layoff Scrutiny
Alongside the fee extension,
President Trump issued an executive order directing the U.S. Departments of Labor, Homeland Security, and State to coordinate more closely on H-1B program administration and take into consideration employers' recent or planned layoffs.
The executive order directs the secretaries of state, labor, and homeland security to consider whether an employer conducted layoffs within the prior year or plans future layoffs affecting similarly situated U.S. workers when adjudicating H-1B-related filings.
The directive is broader than the existing statutory nondisplacement rules because it reaches layoffs during the prior year and planned future layoffs, rather than focusing only on the existing ninety-day window.
The executive order leaves significant implementation details to forthcoming agency guidance, which will determine how DOL, DHS, and the State Department incorporate layoff-related information into H-1B adjudications. Information on how the directive will apply in practice is not yet known.
DHS's Plan B: The $103,265 Fee Through Rulemaking
Perhaps most significantly for the long-term future of H-1B costs,
DHS is proposing to establish a $103,265 fee for all H-1B cap-subject petitions, including those eligible for the advanced degree exemption. The proposed fee would be paid at the time of filing and would be imposed in addition to all other applicable fees or payments.
The timing is not a coincidence. It comes one month after the First Circuit refused to let the government reinstate the $100,000 fee. After losing in court, DHS is now trying to get essentially the same money through a different legal door.
DHS identified total costs to be recovered of $8,777,488,035, divided that figure by an assumed annual volume of 85,000 cap-subject petitions, and arrived at $103,264.57. In other words, the fee is not a measure of what it costs USCIS to adjudicate an H-1B petition. It is a revenue target divided by a headcount.
Critically, unlike the proclamation-based fee,
the proposed additional fee would apply only to cap-subject H-1B petitions. Any petition that is cap-exempt for any reason, including H-1B extension petitions and petitions filed by cap-exempt organizations, would not be subject to the $103,265 fee.
Written comments on the proposed rule were due on or before September 24, 2026.
What This Means for Employers and Workers
For now, the practical landscape is clear, even if the legal one is not.
Employers are not currently required to submit a $100,000 payment in connection with H-1B petitions. USCIS and the Department of State cannot enforce the vacated policy while the appeal remains pending.
On the evening of July 28, 2026, USCIS acknowledged the First Circuit's order and agreed to comply, but mentioned that they are working on next steps and if the order was to be lifted, "DHS still plans to collect payment."
Employers who previously paid the $100,000 fee face a separate question.
Employers who paid the $100,000 H-1B fee should retain complete payment records and speak with counsel about whether to pursue recovery.
The months ahead will be pivotal. The First Circuit's merits ruling, a potential Supreme Court intervention, the D.C. Circuit's parallel case, and the finalization of the $103,265 proposed rule could all reshape the H-1B cost landscape.
Since the fee is currently unenforceable, employers holding petitions solely due to the $100,000 cost can confidently proceed with standard filing fees ($2,000–$5,000), knowing they are acting within the current legal landscape.
But as the administration's multi-pronged approach makes clear — extending the proclamation, proposing an even larger fee through rulemaking, and adding layoff scrutiny — the push to fundamentally restructure the economics of H-1B sponsorship is far from over.
This article is for informational purposes only and does not constitute legal advice. Consult with a qualified immigration attorney for guidance on your specific situation.