The $100,000 H-1B fee is once again unenforceable — and this time, the clock may be running out on it entirely.
On Friday, July 24, 2026, a three-judge panel for the First Circuit officially denied the government's emergency motion
to reinstate the controversial supplemental payment requirement for certain H-1B petitions.
The Court held that the government failed to make the strong showing of likely success on the merits needed for a stay, agreeing with the states that the $100,000 payment functions like a fee or tax requiring a clear congressional delegation under Skinner v. Mid-America Pipeline Co.
The decision marks the latest — and potentially decisive — chapter in a whipsaw legal battle that has left employers, immigration attorneys, and H-1B workers navigating extraordinary uncertainty since September 2025.
The Legal Timeline
On September 19, 2025, President Trump issued Presidential Proclamation 10973, which required employers to submit a $100,000 payment with H-1B petitions for foreign nationals located outside the United States.
The administration stated that the fee was intended to address perceived abuse of the H-1B program and protect U.S. workers, specifically focusing on science, technology, engineering, and mathematics (STEM) occupations.
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.
On June 8, 2026, the U.S. District Court for the District of Massachusetts ruled in favor of the states, finding the policy unlawful and vacating it in its entirety.
The court concluded that the fee functions as a tax rather than a routine regulatory charge, and that the president's statutory authority to restrict the entry of noncitizens does not extend to imposing a tax.
The court separately found that the agencies' rollout of the fee did not comply with federal rulemaking requirements.
What followed was a rapid procedural back-and-forth.
Judge Leo T. Sorokin denied the government's request for a full stay pending appeal but granted a limited administrative stay, temporarily pausing the vacatur while the government sought emergency relief from the First Circuit — conditioned on filing by June 18, 2026.
The government filed on time, but the First Circuit was not persuaded.
The appeals court agreed with the lower court and noted that the plaintiff states were likely to be substantially injured by the stay. The First Circuit's order means that the $100,000 H-1B application fee remains vacated pending a decision on the merits in the underlying appeal.
A Circuit Split Complicates the Picture
The First Circuit's ruling stands in direct tension with proceedings in another federal court.
In December 2025, Judge Beryl Howell of the U.S. District Court for the District of Columbia upheld the $100,000 fee for the H-1B visa, citing the president's broad authority to restrict noncitizens' entry to the country.
That decision is currently on appeal before the United States Court of Appeals for the D.C. Circuit, which heard oral argument in March 2026.
Federal courts have reached conflicting conclusions on the fee, leaving open the possibility of further review, potentially up to the U.S. Supreme Court.
There are also other pending lawsuits challenging the $100,000 H-1B payment requirement, including one filed in the U.S. District Court for the Northern District of California by Global Nurse Force and a coalition including labor unions and other organizations.
The September 20 Expiration Date
Perhaps the most significant variable now is not the appeal itself but the calendar.
By its terms, Proclamation 10973 imposes a temporary 12-month restriction that will expire on September 20, 2026, unless extended.
With approximately six weeks remaining, the practical question for many employers is becoming more immediate: what exposure exists during the remaining period, and will the Administration extend, renew, or reissue the Proclamation, regardless of when the First Circuit ultimately rules?
Because the fee has been vacated, it cannot be collected now, and the Proclamation lapses in about six weeks on its current terms. For petitions that can be filed and adjudicated inside that window, exposure is limited even if the government later obtains a stay. For anything with a longer runway, the risk is real and should be priced in.
What This Means for Employers and H-1B Workers
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.
However, the relief is provisional — not permanent.
This is a ruling on the stay motion only. The court did not decide the ultimate merits of the appeal and did not definitively hold the payment to be an unconstitutional "tax."
The merits appeal remains pending before the First Circuit, and the government may seek a stay from the Supreme Court.
USCIS has not yet issued revised guidance or H-1B filing instructions reflecting the First Circuit's decision. The agency's published instructions and filing systems may not be updated immediately.
For H-1B workers and their employers, several practical considerations apply:
- File strategically during the window. With the fee vacated and the proclamation set to expire September 20, employers with pending H-1B needs involving consular processing should evaluate whether filing now reduces risk.
- Exercise caution with international travel.
- Retain payment records.
- Audit pending petitions.
What Comes Next
The legal landscape remains highly fluid.
What the courts set aside is the agency policy implementing the Proclamation, which is the only thing the states asked to have vacated and the only thing the APA reaches. The judgment does not declare the Proclamation void, and no injunction was entered against giving effect to it.
The First Circuit ruled based on a lack of legal authority rather than on a procedural mistake, so a renewed implementation would need a different statutory footing. That is a meaningful constraint, but it is not the same as the Proclamation being off the table, and it says nothing about whether the Administration extends the restriction past September 20 or issues a new one.
The government's options include seeking an emergency stay from the Supreme Court, pursuing the merits appeal on an expedited basis, or — perhaps most critically for the long term — extending or reissuing the proclamation before it expires on September 20.
The $100,000 H-1B fee has been in force, vacated, reinstated, and vacated again since September 2025, and the Proclamation's expiration date adds a second variable to an already unsettled picture.
For now, the fee is blocked. But in immigration law under this administration, "for now" has proven to be a remarkably short timeframe. Employers and H-1B workers alike should treat the coming six weeks as a critical window — and plan accordingly.
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This article is for informational purposes only and does not constitute legal advice. For guidance on your specific immigration situation, please contact our team.