Proclamation 10973 Expired Yesterday. The Administration's Replacement Proposal Closes for Comment in Three Days.

What happened on September 20

Proclamation 10973, the September 2025 executive order that imposed a $100,000 fee on new H-1B petitions for workers outside the United States, expired yesterday. The proclamation established a 12-month entry restriction, signed September 19, 2025, set to lapse September 20, 2026. No extension was announced before the deadline. No replacement proclamation was signed. As of September 20, the authority to collect or enforce the fee under that executive order is gone.

That sounds like a clean resolution. It is not. The administration spent the weeks before the expiration not renewing the proclamation, but instead publishing a proposed regulation in the Federal Register that would accomplish roughly the same thing through a different legal mechanism — and apply it far more broadly. The comment deadline on that proposal is September 24, 2026. Three days from now.

The $100,000 fee — what actually happened

The fee was live for less than nine months before courts shut it down. Proclamation 10973 took effect September 21, 2025. It applied to H-1B beneficiaries outside the United States who needed a visa stamp through consular processing to enter. Extensions, amendments, and change-of-employer filings for workers already inside the country were out of scope. Cap-exempt petitions from universities and nonprofits were explicitly excluded.

A coalition of state attorneys general led by California filed suit in December 2025 in the U.S. District Court for the District of Massachusetts. On June 8, 2026, District Judge Leo Sorokin vacated the fee, holding that it functioned as a tax and exceeded presidential authority. The government appealed. The First Circuit issued a brief administrative stay in mid-June, temporarily reinstating the fee. On July 24, 2026, the First Circuit denied the government's full stay motion. The fee has been blocked since.

The September 20 expiration means the proclamation is gone regardless of the First Circuit's eventual merits ruling. A court deciding an appeal on a proclamation that no longer exists faces a live-controversy problem. The administration anticipated this: the $103,265 NPRM was published on August 25 — before the proclamation lapsed — precisely to keep a fee of this kind alive through a different legal channel.

The NPRM is a different animal

Presidential Proclamation 10973 imposed a fee through executive authority. Judge Sorokin held that it functioned as a tax only Congress can impose. The $103,265 NPRM takes a different path: it proposes a fee through the standard notice-and-comment rulemaking process under the Administrative Procedure Act. Published August 25, 2026 in the Federal Register under Document 2026-17324 with Docket Number USCIS-2026-0298.

The difference in scope is significant. Proclamation 10973 applied only to new H-1B petitions where the beneficiary was outside the United States and needed consular processing. The proposed rule would impose the $103,265 fee on all H-1B cap-subject petitions — including change-of-status filings for workers already inside the country. Every employer filing a cap-subject H-1B petition, not just those hiring internationally, would face this cost.

The proposed $103,265 would stack on top of the existing USCIS base fee, the asylum program surcharge, and the fraud prevention fee. The total for a cap-subject H-1B petition under the proposed rule would exceed $110,000. For employers who have been planning FY2028 cap-cycle H-1B budgets, this is the number to track — not the proclamation amount that just expired.

An APA rulemaking is also legally more defensible than a proclamation on fee-setting authority. The process requires DHS to explain its reasoning, respond to substantive comments in the record, and demonstrate that the fee has a statutory basis. That does not make the rule unchallengeable. But it addresses the specific legal vulnerability that ended the proclamation-based approach.

September 24 — the comment deadline

The NPRM opened a public comment period that closes on September 24, 2026. Comments must be submitted through the Federal eRulemaking Portal at regulations.gov under Docket USCIS-2026-0298.

An immigration fee rulemaking is not a petition drive. Comments that carry weight in a potential future court challenge are specific, substantive, and grounded in the agency's record. Useful comments address: whether the proposed fee amount is supported by evidence of actual government costs, whether the statutory authority cited in the NPRM actually authorizes a fee of this size for this purpose, and whether the economic analysis DHS conducted was adequate.

AILA, employer associations, and technology industry groups are expected to file detailed comments before Thursday. Individual employer comments that quantify specific economic harm — actual hiring decisions affected, particular planned roles that would be canceled, specific dollar impacts to a specific company — add independent weight to the record. Courts reviewing whether an agency adequately considered economic impact look at the whole record, including comments from affected parties.

The comment period runs 30 days from August 25, which is shorter than what practitioners typically expect for a rule of this scale. Most significant immigration fee rules carry 60-day comment periods. The compressed timeline reflects the pace of this administration's rulemaking.

The gap between an NPRM and a final rule

Even with efficient processing, a final rule is not imminent. An agency that issues an NPRM must read and substantively address every unique comment that raises a legal or factual issue. A rulemaking receiving thousands of comments — and a fee of this magnitude will — takes months after the comment period closes before a final rule can be published.

The FY2028 H-1B cap registration window opens in spring 2027. If a final rule is not published before registration opens, the fee would not apply to petitions filed in that cycle. The timing of finalization relative to H-1B cap cycles is what matters for employers, not the NPRM publication date. Monitor the Federal Register in early-to-mid 2027 for a final rule. Do not treat the NPRM as a mandate in force today.

The refund question for employers who paid

Employers who paid the $100,000 through pay.gov between September 21, 2025 and June 8, 2026 — when the district court vacated the fee — and briefly again between June 12 and July 24, 2026 during the First Circuit's short administrative stay — have received no guidance from USCIS on how to recover those payments. No court order addressed refund mechanics. No USCIS guidance document addresses them.

With the proclamation now expired, the First Circuit litigation may face a mootness argument. If the court dismisses the appeal, one potential path to a court-ordered refund closes. The alternative is a Tucker Act claim in the United States Court of Federal Claims — a separate proceeding with a six-year statute of limitations. A Tucker Act claim does not depend on the proclamation being live. It requires separate litigation, but the limitations clock does not run faster because the proclamation expired.

Every employer that paid during the collection window should preserve all pay.gov receipts, the petition it accompanied, the I-797 or denial notice, and any related banking documentation. Whether recovery is possible depends on facts specific to each filing. Consulting a federal claims attorney — not only an immigration attorney — is the relevant next step. The Tucker Act analysis requires a different expertise than the immigration question.

The filing landscape today

For employers filing H-1B petitions right now: the $100,000 fee is gone. The proclamation that authorized it has expired. USCIS is applying its standard post-April 2024 fee schedule, which includes the base fees and the asylum program surcharges. No additional proclamation-based fee applies.

The FY2027 cap closed in July 2026. No new cap-subject H-1B petitions are being accepted for FY2027. Cap-exempt petitions from universities, nonprofit research institutions, and government research organizations continue year-round. Extensions, amendments, and transfers for workers already in H-1B status are unaffected and proceed under the standard fee schedule.

The $103,265 NPRM is a proposal. Until it becomes a final rule — which requires completing the comment period, agency review, and Federal Register publication — the proposed fee does not exist. Plan around the current fee schedule for near-term filings. Watch the Federal Register for a final rule in 2027. This article is informational only and does not constitute legal advice. The status of Proclamation 10973, the $103,265 NPRM, and refund options for employers who paid all involve facts specific to individual cases. Consult a licensed immigration attorney and, for the refund question, a federal claims attorney.