The $100,000 H-1B Fee Is Back. Not for Everyone. Here Is What Actually Applies to You.

Fourteen days and three different answers

The immigration community's understanding of the $100,000 H-1B supplemental fee has changed three times in fourteen days, and many employers still have the wrong version loaded.

June 8, 2026: the U.S. District Court for the District of Massachusetts struck down the $100,000 fee in full. Judge Leo T. Sorokin granted summary judgment for the plaintiff states and issued vacatur — a ruling that eliminates the policy itself, not merely blocks its enforcement against specific parties. On two independent legal grounds — the taxing-power constitutional argument and an Administrative Procedure Act notice-and-comment violation — he declared the September 2025 presidential proclamation and all DHS implementing guidance to be unlawful. As of June 8, the fee had no valid legal basis anywhere in the country.

June 11: the Trump administration filed a formal notice of appeal with the U.S. Court of Appeals for the First Circuit. June 12: the same district court issued an administrative stay of its own ruling. The fee was back in effect, with one condition attached: the government had to file a formal stay motion with the First Circuit by June 18, 2026.

The June 18 deadline passed yesterday. Based on the government's explicit public statements of disagreement, its June 11 notice of appeal, and the pattern of emergency filings in this administration's immigration litigation, the filing almost certainly happened. As of June 19, the fee is almost certainly still in effect. The First Circuit is now the decision-maker. If you saw the June 8 ruling and stopped including the supplemental payment in new petitions: that window closed on June 12. And if you assumed the reinstated fee applies the same way it always did to every H-1B petition: there is a more important distinction to understand.

What the fee applies to — and what it does not

The September 19, 2025 presidential proclamation that created this fee is titled "Restriction on Entry of Certain Nonimmigrant Workers." The operative word is entry.

H-1B benefit requests come in fundamentally different types. Some require the beneficiary to actually enter the United States through a U.S. consulate abroad. The employer files the petition with a consular notification request — the worker is outside the country, receives a visa stamp at a U.S. consulate, and is admitted at a U.S. port of entry. That process is called consular processing. According to immigration attorneys who have analyzed the proclamation and USCIS implementing guidance, the $100,000 supplemental fee applies to this category of petition.

Other H-1B requests cover workers already inside the United States who are not entering the country. An H-1B extension for a worker continuing with their current employer without traveling abroad — that petition does not involve entry. A change of status from F-1 OPT to H-1B for someone who stays in the United States throughout — no entry involved. An H-1B amendment reflecting a job location change for a worker who remains here — no entry involved. Legal practitioners have consistently read the proclamation as applying the fee only to petitions that require actual entry through a port of entry, not to benefit requests that maintain or adjust status within the US.

This distinction was largely missing from the extensive coverage of both the June 8 ruling and the June 12 stay. The phrase "the $100,000 H-1B fee" became shorthand for a universal cost burden, when the reality has always been more targeted. The reinstated fee is back for consular processing petitions. It has never applied to domestic status adjustments.

Who actually faces the $100,000 requirement right now

With the stay in effect, the population directly subject to the fee is employers petitioning for H-1B workers who will obtain visa stamps at U.S. consulates and enter the country from abroad. A technology company in Seattle wants to hire a software engineer currently working in Bangalore. The petition goes to USCIS as consular notification. The engineer receives an H-1B visa stamp in Hyderabad and enters the US at a port of entry. That petition is subject to the $100,000 supplemental fee.

An H-1B holder who arrived five years ago filing a routine extension while remaining in the United States: no $100,000 fee. A STEM OPT student transitioning to H-1B without leaving the country: no fee. A cap-exempt H-1B amendment at a university or research institution: no fee. The reinstated fee is primarily a concern for employers bringing new H-1B workers from outside the United States, not for the majority of existing holders managing domestic extensions and amendments.

The trap nobody is talking about

Here is where the fee becomes relevant to people who thought they were safely in the exempt category.

A change of status petition converts an in-country worker from one nonimmigrant status to another without requiring departure. That petition, while the worker remains inside the United States, is not subject to the fee. The problem occurs when the worker departs the country while the petition is still pending. When a beneficiary leaves the US while a change of status or extension petition is pending, USCIS treats the change of status portion as abandoned upon departure. The petition does not disappear — but it converts. It is now processed as a consular notification petition: the worker must obtain a visa stamp abroad and re-enter at a port of entry. That is the category the $100,000 fee applies to.

The practical example: an Indian-born engineer on OPT whose employer filed a cap-subject H-1B change-of-status petition, who then travels to India for a family emergency before the petition is adjudicated — that departure converts the petition. Re-entry to the United States requires a consular stamp. The petition, now a consular processing petition, may be subject to the $100,000 supplemental fee. The same conversion mechanism applies to H-1B extension petitions where the beneficiary departs mid-processing.

For employers with H-1B cap winners currently on OPT waiting for October 1 start dates: the fee risk is directly tied to whether beneficiaries remain in the US until adjudication. A trip home that seemed like routine personal travel is now a decision with potential six-figure financial consequences. The travel policy for any beneficiary with a pending change-of-status petition needs to be reviewed and communicated clearly before any departure happens.

The First Circuit and what the June 18 deadline meant

The government's June 18 deadline to file a formal stay motion with the First Circuit has now passed. That motion is almost certainly on file. The First Circuit motions panel will decide whether to keep the district court stay in effect while the full appeal proceeds — or deny the stay, which would cause the June 8 vacatur to snap back into effect and eliminate the fee again for consular processing petitions.

Courts evaluating stay motions weigh four factors: the likelihood of success on the merits of the appeal, the potential for irreparable harm if the stay is denied, the harm a stay would cause the other party, and the public interest. The government's strongest argument for a continued stay is the potential disruption from a fee collected for nine months being suddenly eliminated mid-litigation. Its weakest argument is the merits: the district court found two independent legal grounds to strike down the fee, and the First Circuit would need to conclude the government is likely to prevail on both of them.

First Circuit motions panels in high-profile immigration cases have moved quickly in 2025 and 2026. The ruling could come within days. That is the next event to watch.

What employers should do right now

For any H-1B petition where the beneficiary is outside the United States and will obtain a visa stamp at a consulate: include the $100,000 supplemental fee. The stay has reinstated this requirement and it currently applies to consular processing petitions.

For H-1B extensions, changes of status, and amendments where the beneficiary is inside the United States and will remain there until adjudication: the fee does not apply. File on standard fee schedules.

For beneficiaries on OPT or other status with pending change-of-status petitions: communicate clearly about the consequences of any international travel before adjudication. Departure converts the petition to consular processing and may trigger the $100,000 fee. This is not a hypothetical risk — it is the predictable outcome under the regulatory framework, and the financial consequence is large.

Build a contingency plan for the First Circuit ruling. If the court denies the stay, the fee disappears from consular processing petitions the moment that order issues — any petition in preparation that includes the supplemental payment will need to be revised quickly. If the court grants the stay, the fee remains in place pending full merits briefing that could extend into late 2026 or 2027.

How to read the next ruling when it comes

When the First Circuit issues its stay decision — watch for it this week or next — the practical question is simple: fee in effect or fee gone? If the court grants the stay: consular processing petitions continue to require the $100,000 payment and full appellate briefing plays out over months. If the court denies the stay: the June 8 vacatur is back in force, the fee is gone, and employers should revise any pending petitions in preparation to remove the supplemental payment.

One thing the First Circuit will not decide: the H-1B weighted lottery framework. The weighted selection rules — which give higher lottery odds to petitions tied to higher-wage positions under the February 2026 final rule — are a separate USCIS regulatory system with no connection to the September 2025 proclamation or this litigation. Whatever happens to the $100,000 fee, the weighted lottery remains the governing framework for cap-subject H-1B selection. These are two separate issues and should not be conflated.

This article is informational only and does not constitute legal advice. Fee requirements, petition type classification, and travel consequences depend on facts specific to each employer and beneficiary. Consult a licensed immigration attorney before filing any H-1B petition or making travel decisions for beneficiaries with pending petitions.