The First Circuit Won't Revive the $100,000 H-1B Fee. Here Is Where Things Stand.

What the September 2025 proclamation created

On September 19, 2025, President Trump issued a Presidential Proclamation imposing a $100,000 fee on new H-1B petitions. The fee took effect two days later, on September 21. It applied specifically to new H-1B petitions approved for consular processing — cases where the H-1B beneficiary was outside the United States and needed to attend a visa interview at a U.S. embassy or consulate before entering the country. Extensions and amendments filed by workers already inside the United States were not the target. New hires coming from abroad were.

The stated rationale was reducing the outsourcing model. About half of all H-1B petitions in a given cap year come from consulting and staffing firms that place workers at third-party client sites. The administration's argument was that this practice depressed wages and allowed companies to import cheaper foreign labor at scale. A $100,000 fee per petition was intended to price that model out. USCIS implemented the fee. Employers filing new H-1B petitions for consular processing had a new $100,000 charge in their filings.

The fee did not apply to cap-exempt petitions, H-1B extensions filed inside the United States, or amendment petitions for workers already on H-1B status. The $100,000 applied specifically when a foreign national abroad needed a new H-1B visa stamp to enter — a narrower universe than all H-1B activity, but a significant one for companies with overseas talent pipelines and for Indian workers entering for the first time.

The lawsuit, and why it went to Massachusetts

A coalition of state attorneys general, led by California, filed suit in the U.S. District Court for the District of Massachusetts on December 12, 2025. The case is California et al. v. Trump et al. The core legal argument was direct: a president cannot impose taxes. Article I of the Constitution gives Congress the power of the purse. The $100,000 fee was not designed to recover the cost of processing H-1B petitions — it was set at a level that generated revenue and was intended to deter certain employer behavior. Whatever label you put on it, the states argued, it functioned as a tax, and the executive branch does not get to impose taxes by proclamation.

The litigation went through multiple stages before the final ruling, with the district court and the appellate court both entering orders that affected whether the fee was being collected at different points. The back-and-forth created real uncertainty for employers: some months the fee appeared to be off, others it was back on, and the question of what to include in any given filing depended entirely on which order was currently operative.

The June 8 ruling that vacated the fee

On June 8, 2026, U.S. District Judge Leo Sorokin issued a substantive ruling on the merits. He vacated the $100,000 H-1B fee, holding that it constituted an unlawful tax that exceeded the scope of presidential authority. This was not a procedural pause — it was the district court's conclusion on the actual legal question. The fee, as structured and imposed by the September 2025 proclamation, cannot stand under law.

The government immediately disagreed and announced that it strongly opposed the ruling. Rather than simply letting the vacatur stand while appealing the merits, the government asked the First Circuit to stay Judge Sorokin's order. A stay would have meant the $100,000 resumed being collected while the First Circuit worked through the full appeal. Employers who had stopped including the fee in consular processing petitions would have had to start again. The fee would have been operationally back in force, even with a merits appeal pending.

What a stay requires — and why the First Circuit refused

Obtaining a stay of a district court order pending appeal requires satisfying a four-part test. The most demanding prong is showing a substantial likelihood of success on the merits of the appeal — courts are reluctant to effectively say a fellow judge was probably wrong before even hearing full briefing and argument on the question. The other factors include irreparable harm to the party seeking the stay, harm to the opposing side, and the public interest.

On July 24, 2026, the First Circuit denied the government's stay request. The court found that the administration had not made a sufficiently strong showing that it was likely to succeed in its appeal of Judge Sorokin's ruling. The district court's June 8 vacatur remains in place.

The operational effect is clear: the $100,000 H-1B fee is not currently in effect. USCIS is not collecting it. Employers filing new H-1B consular processing petitions do not include $100,000. That is the state of play as of July 24, 2026 — a court order blocks the fee, and the First Circuit has now declined to lift that block while the appeal proceeds.

The appeal is still live — this is not a final result

The First Circuit's July 24 order is a ruling on the stay request, not a ruling on whether the district court was correct on the merits. Those are different proceedings answered at different points. The merits appeal — the government's challenge to Judge Sorokin's underlying legal conclusions — remains pending at the First Circuit.

If the First Circuit ultimately reverses the district court on appeal, the $100,000 fee could come back. The form of any reinstatement would depend on how the appellate court structures its ruling — whether it applies only to future petitions, how it addresses petitions filed during the vacatur period, and what instructions it gives USCIS. None of that is determinable now.

What is predictable is the timeline. A full merits appeal involves briefing schedules, oral argument, and a written opinion from an appellate panel. This process typically runs many months — not weeks. Employers and workers making near-term filing decisions should assume the fee is off and watch for updates on the First Circuit's full merits schedule. If and when a ruling on the merits comes, the implications will be clear from the court's order itself.

Who was affected — and the connection to the green card pipeline

The $100,000 fee applied to new H-1B consular processing petitions — not to extensions, amendments, change of employer filings, or cap-exempt cases. Most H-1B activity in the United States at any given time does not involve consular processing. But for companies building or maintaining overseas talent pipelines, the fee was substantial. A company bringing five new H-1B workers from India during the window the fee was active faced $500,000 in fees before any of those workers set foot in the United States. Some employers paused overseas hiring decisions entirely.

This connects to the green card process in a specific way. Many Indian-born workers who are today in the EB-2 and EB-3 backlogs — some with priority dates from 2013 or 2014, waiting a decade or more — began their immigration journey with an initial H-1B visa that required consular processing. The H-1B stamp at a U.S. consulate is the first step in a sequence that eventually leads to a PERM filing, an I-140, a priority date, and years later, an I-485 filing window.

A $100,000 barrier at the entry point does not just affect the immediate H-1B petition — it potentially delays or prevents the start of the entire green card sequence for workers in the future pipeline. For Indian nationals working in India today who would otherwise have been sponsored for H-1B and eventually entered the EB-2 or EB-3 queue, the fee was a structural obstacle to joining the backlog at all.

What employers should do now

New H-1B petitions for consular processing can proceed without the $100,000. USCIS is not collecting it. Employers who paused overseas hiring decisions because of the fee can reassess those cases on their merits. Cases that were structured to avoid consular processing specifically because of the cost should be re-evaluated under current conditions.

Employers who paid the $100,000 during the fee's operative window — September 21, 2025 through June 8, 2026 — face a different and unresolved question. The district court's vacatur applies to the fee going forward. Whether payments made under a now-vacated policy are recoverable, and through what process, is not something USCIS has addressed publicly. That analysis requires immigration and litigation counsel specific to each employer's facts and filing history.

Monitor the First Circuit for updates on the merits briefing schedule. The court's ultimate ruling on whether the district court was correct is the event that will definitively determine the fee's future. Until that ruling comes, the fee is off and no court order currently requires its collection. This article is informational only and does not constitute legal advice. Decisions about specific H-1B filings, consular processing strategy, and fee recovery questions depend on facts that vary by employer and case. Consult a licensed immigration attorney before acting on any information here.