The most expensive fee in the history of the H-1B program cannot be collected right now. On July 24, the U.S. Court of Appeals for the First Circuit refused the government’s request to pause a lower-court ruling that struck down the $100,000 fee on new H-1B petitions — meaning the fee is unenforceable nationwide while the appeal plays out.
How We Got Here
The fee was imposed by presidential proclamation in September 2025 on certain new H-1B petitions. On June 8, a federal judge in Boston vacated it entirely, ruling that it functions as a tax — something only Congress has the power to levy — and that it was arbitrary, capricious, and beyond the president’s statutory authority under the Administrative Procedure Act.
The government appealed and asked the First Circuit to keep the fee alive during the appeal. On July 24, the court said no, concluding the government failed to make a strong showing that it is likely to win on the merits. The nationwide vacatur is now in full force.
What This Means Right Now
USCIS cannot require the $100,000 payment for new cap-subject H-1B petitions while the appeal proceeds. Employers filing petitions today do not need to include the fee. Immigration law firms tracking the case widely advise that the situation could still change: the underlying appeal on the merits remains pending before the First Circuit, and a future ruling could revive the fee.
Who Is Affected
The ruling matters most to employers sponsoring new H-1B workers, recent graduates hoping to move from student status to H-1B, and startups that were priced out of sponsorship overnight when the fee took effect. For many small companies, a six-figure surcharge per hire made the program unusable.
Employers and workers with pending or planned petitions should follow the appeal closely and confirm current requirements with counsel before filing. This article is for general information only and is not legal advice.
Sources: U.S. Court of Appeals for the First Circuit order of July 24, 2026; U.S. District Court for the District of Massachusetts ruling of June 8, 2026; reporting by NPR, Forbes, and SHRM.
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