H-1B $100,000 Fee Blocked: Current Status After July 2026 Ruling

The controversial H-1B $100,000 fee is currently blocked after a federal appellate court refused to suspend the judgment that declared the payment policy unlawful. The July 24, 2026 order represents a major change from the temporary situation that existed throughout June and most of July, when the government continued enforcing the payment while its emergency stay request remained unresolved.

Employers should not rely on older reports stating that the $100,000 payment remains mandatory. Those reports described the temporary administrative stay that existed before the First Circuit acted. The official July 24 order from the U.S. Court of Appeals for the First Circuit denied the government’s motion to keep the lower-court judgment paused during the appeal.

The practical result is that the federal agencies do not currently have the benefit of a judicial stay allowing them to continue enforcing the administrative policy that implemented the $100,000 payment. The underlying appeal remains pending, however, and the government may pursue further relief. Employers, immigration professionals and H-1B beneficiaries should therefore distinguish between the current enforceability of the payment policy and the ultimate outcome of the litigation.

Is the $100,000 H-1B Fee Still Required?

As of July 28, 2026, the policy implementing the $100,000 H-1B payment is vacated and not protected by a stay. The First Circuit rejected the government’s request to suspend the June 8 district court judgment

while the appeal proceeds.

That does not mean the litigation has ended permanently. The First Circuit’s July 24 order addressed a request for temporary relief during the appeal. It did not issue a final merits decision resolving every legal question in the case. The government can continue its appeal and may attempt to obtain emergency relief from a higher court.

What the First Circuit Decided on July 24, 2026

The case is State of California et al. v. Mullin et al., No. 26-1699 in the U.S. Court of Appeals for the First Circuit. Twenty states challenged actions taken by the Department of Homeland Security and the Department of State to implement Presidential Proclamation 10973.

The federal government asked the First Circuit to stay the June 8 district court judgment during the appeal. A stay would have allowed the agencies to continue enforcing the $100,000 payment policy until the appellate litigation ended.

The First Circuit denied that request. The appellate panel concluded that the government had not made the required strong showing that it was likely to succeed in overturning the district court’s determination that the agencies exceeded their statutory authority.

The court emphasized that the Immigration and Nationality Act expressly identifies circumstances in which Congress authorizes immigration-related fees. The government relied primarily on provisions allowing the president to restrict entry, but the appellate court found that those provisions did not expressly authorize a payment of this kind.

The First Circuit also questioned the government’s argument that the DHS and State Department implementation materials were not reviewable final agency actions. According to the court, the government’s own claim that vacating those measures would allow additional H-1B petitions to proceed undermined its argument that the measures created no rights or obligations.

Why the $100,000 H-1B Fee Was Struck Down

On June 8, 2026, U.S. District Judge Leo T. Sorokin ruled that the federal policy implementing the $100,000 payment was unlawful. The court vacated the policy in its entirety after finding constitutional and Administrative Procedure Act problems.

A central issue was whether the payment operated as a genuine administrative fee or as a tax. Although the administration described the amount as a payment connected to immigration restrictions, the district court determined that its substance and operation made it a tax.

The U.S. Constitution gives Congress the power to impose taxes. Congress may delegate certain fee-setting authority to executive agencies, but the district court found no sufficiently clear delegation authorizing the executive branch to impose a $100,000 charge on H-1B petitions under the statutory provisions cited by the administration.

The district court also found that the agencies’ implementation measures violated the Administrative Procedure Act. The challenged measures included guidance, frequently asked questions and fee materials issued by DHS and the State Department to put the presidential proclamation into effect.

• Excess of statutory authority: the agencies relied on presidential entry-restriction authority that did not clearly authorize this type of monetary charge.
• Procedural problems: the government implemented a major substantive payment requirement without the notice-and-comment process normally required for a legislative rule.
• Arbitrary and capricious action: the court found that the agencies failed to adequately address reliance interests, alternatives and the effects on sectors such as healthcare and education.
• Separation of powers: the payment intruded on Congress’s constitutional taxing authority without a clear congressional delegation.

Complete H-1B $100,000 Fee Court Timeline

The Difference Between Blocking the Fee and Ending the Case

The July 24 ruling is highly significant, but it must be described accurately. The First Circuit did not yet issue a final decision affirming or reversing every part of the district court judgment. It ruled on whether the government should be allowed to enforce the payment policy while the appeal is pending.

To obtain that temporary relief, the government needed to satisfy a multi-factor legal test. Among other requirements, it had to make a strong showing that it was likely to succeed on the merits. The First Circuit concluded that the government had not met that burden.

Because the stay was denied, the government cannot rely on the temporary administrative pause that had kept the policy operative during June and most of July. The underlying district court vacatur now controls unless another court grants relief or the legal situation changes.

The appeal itself can still produce a different result. A later First Circuit decision could affirm the district court, reverse it, narrow the judgment or remand the case for additional proceedings. The federal government could also seek Supreme Court review or emergency relief before the appeal is completed.

Does the Presidential Proclamation Still Exist?

Yes, Presidential Proclamation 10973 remains a formally issued presidential document. The district court focused its vacatur on the DHS and State Department policy materials used to implement the proclamation.

This distinction matters. A presidential proclamation can remain published even when agency measures designed to enforce it have been declared unlawful. Without valid implementing measures, however, the agencies cannot simply rely on the vacated policy as though the court judgment did not exist.

The proclamation stated that the restriction would last for 12 months from its September 21, 2025 effective date unless extended. That places its scheduled expiration in September 2026. An extension, replacement policy, new rulemaking or additional litigation could still affect the situation before then.

Which H-1B Petitions Were Originally Covered?

The original proclamation was not written as an extra $100,000 charge on every H-1B filing. It focused on H-1B workers outside the United States whose petitions and subsequent entry would fall within the proclamation’s restrictions.

DHS implementation guidance later addressed petitions involving consular notification, port-of-entry notification and certain cases in which a requested change or extension of status could not be granted. This made the practical scope more complicated than a simple distinction between beneficiaries inside and outside the United States.

The proclamation also allowed the Secretary of Homeland Security to grant national-interest exceptions for an individual, company or industry. It did not create a universal statutory exemption merely because an employer was cap-exempt, a university, a nonprofit organization or a research institution.

Because the implementing policy is now vacated, employers should not use the old eligibility descriptions as current filing instructions. They should review the latest USCIS guidance and the specific Form I-129 instructions available when filing.

What H-1B Employers Should Do Now

Employers preparing an H-1B petition after the July 24 order should treat this as a rapidly changing legal and filing environment. The safest approach is to verify the status of the payment requirement immediately before submitting the petition rather than relying on an article, email or cached agency page reviewed several days earlier.

Check Current USCIS Filing Instructions

Review the current USCIS Fee Schedule, Form I-129 instructions and any alerts published on the USCIS H-1B pages. Ordinary H-1B fees continue to apply even though the separate $100,000 policy has been vacated.

Do Not Use the Old June Guidance as the Current Rule

Guidance stating that the fee remained enforceable while the First Circuit considered the stay request became outdated when the court denied that request on July 24. Employers should confirm that any checklist or legal memorandum they use reflects the post-July 24 posture.

Separate the $100,000 Payment From Standard H-1B Fees

The litigation does not eliminate the Form I-129 filing fee, the ACWIA training fee, the fraud prevention and detection fee, the asylum program fee, premium processing charges or other amounts that may apply to a particular employer and petition.

The exact total depends on employer size, petition type, requested service and available exemptions. Employers should calculate those charges using the official USCIS fee schedule rather than assuming that the removal of the $100,000 payment makes an H-1B petition free or inexpensive.

Preserve Records of Any Previous Payment

An employer that previously paid the $100,000 amount should retain the payment receipt, pay.gov confirmation, filed petition, approval or rejection notices, legal correspondence and evidence showing why the payment was submitted.

The court rulings do not automatically create a refund process. Whether past payments can be recovered may depend on future litigation, agency procedures, claim deadlines and the circumstances of the original filing.

Consult Counsel for Time-Sensitive Petitions

A company facing a filing deadline, expiring status, consular-processing requirement or international travel issue should obtain case-specific legal advice. The current judicial posture is favorable to employers challenging the payment, but additional emergency litigation could alter filing requirements with limited notice.

What the Ruling Means for H-1B Workers

The $100,000 payment was directed at petitioning employers, not at individual workers as a personal visa application fee. An employer generally cannot shift legally required H-1B employer expenses to a worker when doing so would violate wage rules or reduce required compensation.

The July 24 order does not automatically approve a pending H-1B petition, guarantee visa issuance or eliminate other grounds for denial. USCIS must still evaluate whether the position qualifies as a specialty occupation, whether the beneficiary meets the educational and professional requirements and whether the employer has established a valid employer-employee relationship and compliant labor conditions.

The ruling also does not automatically revoke or invalidate H-1B visas previously issued while the payment policy was in effect. It concerns the lawfulness of the federal implementation measures used to impose the additional payment.

Workers abroad should remain attentive to consular instructions, petition validity dates and travel restrictions. A court decision eliminating the payment policy does not replace the need for an approved petition, a valid visa when required and admissibility at the port of entry.

Can Employers Request a Refund?

No automatic refund program has been established solely because the district court vacated the implementation policy or because the First Circuit denied the stay request. A vacatur can strengthen arguments that payments collected under an unlawful policy should be returned, but the practical mechanism for obtaining reimbursement may require additional agency action or litigation.

Employers that paid the amount should avoid assuming that a refund will arrive automatically. They should preserve all documentation and consult counsel about administrative claims, litigation deadlines, jurisdictional requirements and whether a protective filing may be necessary.

An employer should also distinguish between the disputed $100,000 payment and ordinary USCIS fees. The court did not invalidate regular H-1B fees authorized by statute or regulation, and those amounts would not become refundable merely because the supplemental payment policy was vacated.

Could the $100,000 Fee Return?

The fee could return only if the legal or administrative situation changes. Several possible developments could affect the current status:

• The First Circuit could ultimately reverse or narrow the district court judgment after considering the full appeal.
• The federal government could seek emergency relief from the U.S. Supreme Court.
• The administration could issue a materially different policy supported by separate statutory authority or a formal rulemaking process.
• Congress could enact legislation expressly authorizing a new H-1B payment.
• The administration could extend or replace the underlying presidential proclamation before its scheduled expiration.

None of those possibilities changes the current result of the July 24 order. The government requested a stay, the First Circuit denied it and the district court’s vacatur is presently operative.

How the Ruling Affects Common Filing Scenarios

New H-1B Petition for a Worker Abroad

The vacated policy originally targeted this type of case most directly. After the July 24 order, the government no longer has a stay preserving enforcement of the $100,000 payment policy. The employer must still verify the current USCIS instructions and pay all ordinary fees applicable to the petition.

Change of Status Inside the United States

A properly filed request to change status inside the United States was generally different from a case requiring consular notification. Employers should nevertheless review the beneficiary’s current status, requested start date and possible consequences if USCIS cannot grant the change-of-status portion of the petition.

Extension or Amendment for a Current H-1B Worker

The original payment policy was not intended to operate as a blanket surcharge on every routine extension or amendment. Standard petition fees and eligibility requirements continue to apply. International travel or a later need for consular processing can create additional considerations.

Cap-Exempt University or Nonprofit Employer

Cap exemption and payment-policy coverage are separate legal concepts. A university or qualifying nonprofit may be exempt from the annual H-1B numerical cap, but that status did not automatically create a universal exemption from the presidential payment policy. The current vacatur applies to the implementation policy itself.

Employer That Already Paid $100,000

The employer should retain all payment and petition records. The July rulings improve the legal basis for challenging the collection, but they do not by themselves provide an automatic refund, establish a filing deadline for reimbursement claims or determine how USCIS must process previously collected amounts.

What Happens Next in the H-1B Fee Litigation?

The First Circuit will continue considering the government’s appeal of the June 8 judgment. The parties may file additional briefs addressing statutory authority, presidential power, the Administrative Procedure Act, reviewability of agency action and the appropriate remedy.

The court could schedule oral argument before issuing a full appellate decision. Because the proclamation was originally scheduled to last only 12 months, the approaching September 2026 expiration may affect the government’s litigation strategy, potential extension decisions and arguments over whether parts of the case become moot.

Four developments deserve close attention:

1. Any Supreme Court emergency application seeking to restore the payment during the appeal.
2. Updated USCIS and State Department instructions reflecting the July 24 order.
3. The First Circuit’s merits schedule and final decision in Case No. 26-1699.
4. Any extension, replacement or expiration of Proclamation 10973 in September 2026.

Related H-1B Resources

• H-1B Visa 2026: Complete Guide to Eligibility, Lottery and Fees
• H-1B FY2027 Lottery Results and Filing Requirements
• H-1B Prevailing Wage and Salary Rule Updates
• H-1B Visa Stamping, Consular Delays and Security Screening
• U.S. Visa and Immigration Fees: Complete 2026 Guide

Last reviewed July 28, 2026. This page reflects the First Circuit’s July 24 order denying the federal government’s motion for a stay pending appeal. Court orders, USCIS instructions and agency fee requirements can change. This information is educational and does not replace legal advice for a specific petition.