A federal appeals court has refused to allow the government to resume collecting the controversial $100,000 H-1B fee while the administration’s appeal continues. For now, employers filing affected H-1B petitions are not required to pay the additional $100,000 charge.
The July 24, 2026, decision by the U.S. Court of Appeals for the First Circuit leaves in place a lower federal court ruling that struck down the fee. This is significant relief for American employers, especially hospitals, universities, schools, technology companies, research institutions, and smaller businesses that rely on highly skilled foreign professionals.
However, the legal battle is not over. The government’s appeal remains pending, and the administration could seek emergency intervention from the U.S. Supreme Court.
What Was the $100,000 H-1B Fee?
In September 2025, President Trump issued a proclamation creating an additional $100,000 payment requirement for certain H-1B petitions involving foreign workers located outside the United States.
Under the policy, an employer generally would have been required to submit proof of the $100,000 payment when filing an affected H-1B petition. Petitions submitted without payment or an approved exception could be denied.
The policy focused primarily on workers who were outside the United States and needed an H-1B visa to enter and begin employment. It was not intended to apply in the same way to every H-1B filing, such as many extensions or other petitions involving workers already present in the United States. The proclamation also allowed the Department of Homeland Security to approve exceptions when hiring a particular worker, group of workers, company, or industry was considered to be in the national interest. (The White House)
The $100,000 charge was separate from the ordinary government filing fees associated with an H-1B petition. Employers must still pay all regular USCIS filing fees that apply to their cases, including any required training, fraud-prevention, asylum-program, employer-dependent, or premium-processing fees.
Why Was the Fee Challenged?
Twenty states filed a federal lawsuit challenging the fee. The states argued that the executive branch did not have authority to impose such a large financial charge without approval from Congress.
They also argued that the fee would make it much harder for public universities, schools, hospitals, healthcare systems, and other public institutions to recruit essential professionals. Many of these employers depend on H-1B workers to fill positions involving medicine, scientific research, engineering, technology, and education.
The states warned that a $100,000 charge for each affected worker could worsen existing staffing shortages and prevent public institutions from providing important medical and educational services.
Lower Court Found the Fee Unlawful
On June 8, 2026, U.S. District Judge Leo Sorokin ruled that the government’s implementation of the fee was unlawful.
The district court concluded that the $100,000 payment functioned more like a tax than a normal administrative filing fee. Because Congress had not clearly authorized the executive branch to impose such a charge, the court found that the policy exceeded the government’s statutory authority.
The court also found problems with the way the policy was implemented under the Administrative Procedure Act, the federal law governing how agencies create and enforce administrative policies.
The district court vacated the government actions used to implement the fee, including related agency instructions, fee schedules, guidance, and procedures.
Why Did the First Circuit Refuse to Reinstate the Fee?
After losing in the district court, the federal government appealed and asked the First Circuit to temporarily suspend the lower court’s ruling. Granting that request would have allowed the government to resume enforcing the fee while the appeal was pending.
The First Circuit denied the request.
The appeals court found that the government had not made a sufficiently strong showing that it was likely to win the appeal. The court noted that the immigration statutes relied upon by the administration authorize the president to restrict the entry of certain foreign nationals, but they do not expressly authorize a $100,000 payment requirement of this kind.
The First Circuit also found that the government had not adequately addressed the potential harm the fee could cause to states, public institutions, employers, and members of the public who rely on medical and educational services.
As a result, the lower court’s order remains effective, and the fee is not currently being enforced.
Does This Mean the Fee Is Permanently Gone?
Not necessarily.
The First Circuit’s decision concerned the government’s request for a temporary stay. It was not the final appellate decision resolving every issue in the case.
The government may continue its appeal and ask the First Circuit to reverse the district court’s final judgment. The administration may also ask the U.S. Supreme Court to temporarily reinstate the fee or eventually review the underlying legal dispute.
There have also been different outcomes in other federal lawsuits involving the fee. Conflicting decisions between courts can make Supreme Court review more likely.
The original proclamation stated that the restriction would remain in effect for 12 months beginning September 21, 2025, unless extended. Therefore, the proclamation’s scheduled expiration and any attempt by the administration to renew or replace the policy may also affect what happens next.
What Does This Mean for Employers?
Employers should not include the additional $100,000 payment solely because of the blocked proclamation unless new official instructions or a later court decision require it.
Employers must still comply with all ordinary H-1B requirements. This includes obtaining a certified Labor Condition Application, offering the required wage, proving that the position qualifies as a specialty occupation, establishing the worker’s qualifications, and paying all applicable standard filing fees.
Employers considering consular-processing cases for workers outside the United States should proceed carefully. The legal situation may change while a petition is pending, and a later court order could affect filing procedures.
Before submitting an H-1B petition, employers should confirm the latest USCIS and Department of State instructions rather than relying on outdated fee charts, online articles, or information from earlier stages of the litigation.
What Does This Mean for H-1B Workers?
The court’s ruling is encouraging for foreign professionals who received job offers but were unable to move forward because their employers could not afford the additional fee.
The ruling may particularly benefit physicians, researchers, professors, teachers, engineers, technology professionals, and other skilled workers whose employers had postponed or cancelled sponsorship plans.
Nevertheless, the court decision does not guarantee approval of any H-1B petition or visa. Every applicant must still satisfy the normal H-1B requirements. Workers outside the United States may also need an approved petition, a valid H-1B visa, and admission by U.S. Customs and Border Protection before beginning employment.
Foreign workers should not make irreversible travel, resignation, or relocation decisions until they understand their petition status and the latest government procedures.
Employers and Workers Should Continue Monitoring the Case
The current ruling provides meaningful relief, but it may be temporary. The administration could pursue further appellate review, seek emergency relief from the Supreme Court, extend the proclamation, or attempt to establish a different fee through formal rulemaking or legislation.
Employers planning H-1B sponsorship should prepare their cases early and remain ready to respond to changes. Foreign workers should also review whether another immigration option, such as O-1, L-1, TN, E-2, cap-exempt H-1B, or employment-based permanent residence, may be available.
Speak With an H-1B Immigration Attorney
The rules affecting H-1B petitions are changing rapidly. Whether the $100,000 fee could affect a particular case depends on the type of petition, the worker’s location, the requested employment start date, the employer, and any future court or government action.
The immigration attorneys at Shepelsky Law Group assist employers and foreign professionals with H-1B petitions, requests for evidence, consular processing, extensions, changes of employer, and alternative employment-based immigration options. Call 718-769-6352 or schedule a consultation at www.shepelskylaw.com.
This article provides general information and is not a substitute for individualized legal advice.