Appellate Court Pauses $100,000 H-1B Fee Policy as Appeal Continues

On July 24, 2026, in State of California v. Noem, the U.S. Court of Appeals for the First Circuit denied the U.S. government’s request for a stay on a temporary pause of the $100,000 H-1B fee policy. This came after the U.S. District Court for the District of Massachusetts vacated the controversial $100,000 H-1B proclamation fee, ruling it an unlawful tax and an improper use of executive power. The government appealed, asking the First Circuit to grant an emergency stay (pause) of the decision. The district court briefly stayed its own decision to provide time for the First Circuit to render its decision. The First Circuit ultimately denied the motion to stay, however. As a result, the district court’s ruling remains in effect, and the $100,000 H-1B fee cannot currently be enforced while the case continues through the courts.

The policy at issue was originally outlined in Presidential Proclamation 10973 on September 19, 2025. The proclamation required U.S. employers filing H-1B petitions for certain foreign workers on or after September 21, 2025, to submit an additional $100,000 payment as a condition of eligibility. USCIS later clarified that the additional fee would apply primarily if the H-1B beneficiary were outside the United States at the time of the filing of the petition, or if an H-1B petition were filed with a request for consular processing or port-of-entry notification, or if the H-1B beneficiary was deemed to have failed to maintain proper U.S. immigration status where the beneficiary was physically present in the United States. The policy, frequently misunderstood, has been a significant deterrent for U.S. employers considering hiring and sponsoring foreign workers for H-1B status. 

As it stands, USCIS and the Department of State cannot now assess or require the $100,000 payment for H-1B filings. The First Circuit will continue to review the district court decision on its substantive legal merits. The government could seek review from the U.S. Supreme Court by requesting an emergency stay of the decision, reviving the $100,000 fee. 

Two other federal lawsuits over the fee remain pending, and in one instance, the district court has determined that the fee did fall within the president’s existing authority over non-citizen entry. This suit is now pending appeal at U.S. Court of Appeals for the D.C. Circuit. Further, the original Proclamation 10973 is set to expire on September 20, 2026, and the administration could act to extend or renew it. 

In light of the evolving and unpredictable timing of court proceedings, employers should exercise caution and coordinate closely with legal counsel when submitting H-1B petitions that involve travel while a petition is pending or submitting an H-1B petition for consular processing.