$100,000 H-1B Fee on Hold While Government’s Appeal Proceeds

Quick Hits

• On July 24, 2026, the U.S. Court of Appeals for the First Circuit denied the federal government’s request to pause a Massachusetts district court ruling that struck down the $100,000 H-1B fee.
• The fee, imposed by a September 2025 presidential proclamation, applied to certain new H-1B petitions for beneficiaries who would be approved through consular processing abroad.
• Because the stay was denied, the fee is not currently enforceable while the government’s appeal proceeds.
• Federal courts have reached conflicting conclusions on the fee, leaving open the possibility of further review, potentially up to the U.S. Supreme Court.

Background

On September 19, 2025, President Donald Trump issued a proclamation imposing a one-time $100,000 fee on new H-1B petitions filed on or after September 21, 2025, for beneficiaries who would be approved through consular processing abroad. The administration described the fee as a measure to curb perceived abuse of the H-1B program and to protect U.S. workers, particularly in science, technology, engineering, and mathematics (STEM) occupations.

The proclamation drew challenges in more than one federal court, and those courts have not agreed. In December 2025, a federal district court in Washington, D.C., ruled for the government in a case brought by the U.S. Chamber of Commerce and other business groups, finding the fee within the president’s existing authority over noncitizen entry. That decision is now under review at the U.S. Court of Appeals for the D.C. Circuit.

A separate suit, filed in December 2025 by a coalition of twenty states led by California, was brought in federal district court in Massachusetts. The states argued that the fee undermined the basic function of the H-1B program by making it harder for U.S. employers to fill their labor needs. On June 8, 2026, the Massachusetts court sided with the states and vacated the fee policy in its entirety, reaching the opposite result from the D.C. Circuit. 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.

The government appealed and sought a stay pending appeal. The district court declined to stay its ruling on the merits but granted a brief administrative stay so the U.S. Court of Appeals for the First Circuit could weigh in, which allowed U.S. Citizenship and Immigration Services (USCIS) to continue collecting the fee in the interim. On July 24, 2026, the First Circuit denied the government’s stay request, finding that the government had not shown it was likely to succeed on appeal or that the states would avoid substantial harm if the fee were allowed to resume.

Summary of Ongoing Litigation

Court / Case	Ruling	Current Status
Massachusetts district court (20 states, led by California)	Vacated the fee policy in its entirety on June 8, 2026, concluding the fee functions as an unauthorized tax and that its rollout did not follow proper rulemaking.	On appeal to the First Circuit; stay denied July 24, 2026, so the fee remains unenforceable.
D.C. district court (U.S. Chamber of Commerce)	Ruled for the government in December 2025, finding the fee within the president’s authority over noncitizen entry.	Under review at the D.C. Circuit.
California federal court	A separate challenge to the fee.	Pending.

Next Steps

As a practical matter, the First Circuit’s denial of the stay means the $100,000 fee is not currently enforceable for new H-1B petitions that would otherwise require consular processing. Employers may begin to see approvals issue on petitions that had previously been held up by the fee requirement, and should expect USCIS and the U.S. Department of State to issue updated guidance reflecting the change, although the timing of that guidance is not yet known.

The July 24 ruling addresses only the stay request and does not resolve the merits of the government’s appeal, which remains pending, along with the possibility of further stay requests or review by the Supreme Court of the United States. Given the conflicting rulings so far, employers may want to retain documentation of any fees previously paid in the event a future ruling reinstates the requirement or establishes a path to refunds.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will post updates on the Immigration blog as additional information becomes available.

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