H-1B Visa · Employer Compliance · Fee Litigation
The $100,000 H-1B Fee: What Employers Need to Know Right Now
On June 8, 2026, a federal judge in Boston struck down the Trump administration's $100,000 H-1B filing fee, ruling it an unlawful tax imposed without congressional authorization. Three days later, the administration filed an appeal. Three days after that, the same judge stayed his own ruling — meaning the fee is currently still being collected while the appeal proceeds.
For employers and H-1B workers, the situation is genuinely uncertain: the fee has been ruled unlawful, the ruling has been appealed, a contradictory ruling from a different federal court upheld the fee, a third lawsuit is still pending in California, and a circuit split is building that may ultimately reach the Supreme Court. This guide explains what happened, where things stand, and what employers and sponsored workers should do right now.
Where the Fee Came From
On September 19, 2025, President Trump issued Presidential Proclamation 10973, imposing a $100,000 fee on new H-1B petitions filed for beneficiaries located outside the United States — meaning workers who would need consular processing to enter the U.S. on an H-1B visa rather than those already present and seeking a change or extension of status.
Prior to this proclamation, H-1B filing fees ranged from roughly $2,000 to $7,595 depending on employer size, petition type, and whether premium processing was selected. The new $100,000 fee represented an increase of more than ten times the prior maximum. The administration's stated rationale was that the H-1B program had been exploited to replace American workers with lower-paid foreign labor, particularly in STEM fields, and that the fee would discourage that practice by making offshore hiring significantly more expensive for large employers.
The fee became effective September 21, 2025. By mid-February 2026, USCIS reported receiving only 85 payments — producing $8.5 million in revenue — a figure that suggested most employers were either avoiding new consular-processing H-1B filings or waiting for the legal challenges to resolve. The administration also carved out exemptions for doctors and medical residents after healthcare employers raised concerns about staffing impacts.
What the Massachusetts Court Ruled
The lawsuit that produced the June 8, 2026 ruling was filed in December 2025 by a coalition of 20 state attorneys general, led by California and New York, in the U.S. District Court for the District of Massachusetts. The states argued that the fee was unlawful on multiple grounds and that it directly harmed their ability to staff public schools, colleges, hospitals, and research institutions.
U.S. District Judge Leo Sorokin ruled in favor of the states, vacating the $100,000 fee "in its entirety" on two independent grounds:
First, Judge Sorokin found that the fee is a tax, not an immigration restriction. The Constitution vests the power to impose taxes in Congress, not the executive branch, and Congress had not delegated that authority to the President for this purpose. The administration's framing of the fee as an "immigration restriction" — which would potentially fall within the President's broader immigration authority — did not survive the court's analysis. Sorokin pointed directly to the Supreme Court's February 2026 decision striking down the bulk of Trump's tariffs, analogizing the reasoning: the President cannot impose what amounts to a tax by executive proclamation without congressional authorization.
Second, the court found that the fee proclamation violated the Administrative Procedure Act because the agency's implementation failed to follow required statutory procedures — including notice-and-comment rulemaking — before imposing a fee of this magnitude on H-1B petitioners.
The ruling invalidated not just the proclamation itself but also the agency memoranda, guidance documents, website instructions, FAQs, and fee schedules that USCIS had issued to implement and enforce the fee.
Full Timeline of the Litigation
- Sept 19, 2025President Trump issues Proclamation 10973 imposing a $100,000 fee on new H-1B petitions for beneficiaries outside the United States. Fee effective September 21, 2025.
- Oct 2025Coalition of healthcare organizations, labor unions, and individual workers files a challenge in the U.S. District Court for the Northern District of California. Case remains pending.
- Dec 12, 2025Coalition of 20 state attorneys general files California et al. v. Trump et al. in the U.S. District Court for the District of Massachusetts, challenging the fee as an unlawful tax.
- Dec 2025U.S. Chamber of Commerce and Association of American Universities file a separate challenge in the U.S. District Court for the District of Columbia. That court rules in favor of the government, upholding the fee. Chamber's appeal is pending before the D.C. Circuit, which heard oral argument in March 2026.
- Mar 2026D.C. Circuit holds oral argument on the Chamber of Commerce appeal. Decision pending.
- June 8, 2026Judge Sorokin in Boston vacates the $100,000 fee in its entirety, ruling it an unlawful tax and an APA violation. The administration announces it will appeal.
- June 11, 2026Department of Justice files notice of appeal to the U.S. Court of Appeals for the First Circuit.
- June 12, 2026Administration asks Judge Sorokin to stay his ruling pending appeal. Sorokin grants the stay, reinstating the fee collection while the First Circuit considers the appeal.
- June 18, 2026Government files formal motion to stay Judge Sorokin's order for the duration of the entire appeals process. First Circuit decision pending.
Three Courts, Three Different Postures
The most important thing to understand about the current H-1B fee litigation is that it involves three separate federal court proceedings in three different circuits — with two of them already producing contradictory results.
Judge Sorokin vacated the fee as an unlawful tax. Currently stayed pending First Circuit appeal. If the First Circuit affirms and the stay is lifted, the ruling would apply nationwide. Appeal filed June 11, 2026.
District court upheld the fee in the Chamber of Commerce case, ruling the administration had authority to impose it. D.C. Circuit heard oral argument in March 2026. Decision pending — if the D.C. Circuit affirms, a circuit split is confirmed.
Healthcare organizations, labor unions, and individual workers filed this challenge in October 2025. No final ruling yet. The 9th Circuit is historically the most active immigration circuit and its eventual ruling will add further weight to one side of the split.
The Massachusetts and D.C. district courts have reached opposite conclusions on whether the President has authority to impose a $100,000 H-1B fee by proclamation. Once the First Circuit and D.C. Circuit both issue appellate decisions — which could create a formal circuit split — the Supreme Court would have strong grounds and likely motivation to take up the case to resolve the conflict. Multiple practitioners have predicted Supreme Court review before the end of the current term or early in the next. The fee's scheduled expiration in September 2026 adds urgency to the appellate timeline.
The Stay: Why the Fee Is Still Being Collected
The fact that a federal court ruled the fee unlawful does not mean the fee stopped being collected. When Judge Sorokin granted the government's motion to stay his ruling pending appeal, he effectively hit pause on his own decision. While the stay is in effect, USCIS retains authority to collect the $100,000 fee from qualifying H-1B petitions — specifically, new petitions for beneficiaries who require consular processing to enter the United States.
Courts grant stays of their own judgments pending appeal when the moving party can demonstrate a likelihood of success on appeal, irreparable harm in the absence of a stay, that the balance of equities favors a stay, and that the public interest is served. Here, the D.C. district court's contrary ruling — upholding the fee — gave Judge Sorokin a concrete basis for finding that the administration had at least some likelihood of succeeding on appeal. The circuit split in formation is exactly the kind of legal uncertainty that supports keeping the status quo while appellate courts sort out the conflict.
USCIS has not issued any guidance about refunds for fees already paid, or about what would happen to petitions that paid the fee if it is ultimately invalidated on appeal. That ambiguity is a genuine operational risk for employers currently filing or planning to file consular-processing H-1B petitions.
What Employers and H-1B Workers Should Do Now
For Employers with Pending or Planned Consular-Processing H-1B Filings
The fee is currently still being collected. If you have a new H-1B petition for a beneficiary outside the United States that requires consular processing, plan for the $100,000 fee to be required at filing — regardless of the Massachusetts ruling — until USCIS issues contrary guidance or the First Circuit lifts the stay. Do not assume the ruling eliminates the obligation to pay.
Keep records of all fee payments made in connection with H-1B petitions since September 21, 2025. If the fee is ultimately invalidated on final appellate review and USCIS issues refund guidance, having complete payment documentation will be essential. Employers who paid the fee and are later entitled to refunds will need to demonstrate which petitions were affected.
For Workers Whose Employment Offers Were Affected
Some foreign nationals had employment offers withdrawn or faced hiring freezes in the months after the fee was announced, as employers recalibrated their hiring plans in response to the $100,000 cost. The Massachusetts ruling does not automatically restore those situations — the stay means the legal question remains unresolved. Workers in this situation should consult with an immigration attorney about alternative nonimmigrant status options, timing considerations, and what any appellate outcome might mean for their specific situation.
For Workers Already in H-1B Status
The fee applies specifically to new H-1B petitions for beneficiaries outside the United States requiring consular processing. It does not apply to extension petitions for workers already in H-1B status inside the United States, or to transfers between employers for workers already in valid H-1B status. Workers currently in H-1B status are not affected by the fee dispute for their current petition cycle.
Both appellate courts are likely to issue decisions before the fee's scheduled September 2026 expiration. The First Circuit's ruling on the Massachusetts case will determine whether the stay is maintained or lifted — which would either keep the fee in place or eliminate it immediately for all consular-processing H-1B petitions nationwide. The D.C. Circuit's ruling on the Chamber of Commerce appeal will either confirm the circuit split or narrow it. Either way, the next few months will determine whether this litigation reaches the Supreme Court and on what timeline.
Frequently Asked Questions
Do I have to pay the $100,000 fee right now?
Yes, if your petition qualifies. The fee applies to new H-1B petitions for beneficiaries outside the United States who require consular processing to enter on an H-1B visa. The Massachusetts district court struck the fee down on June 8, 2026, but immediately stayed that ruling pending appeal. While the stay is in effect — which it currently is — USCIS retains authority to collect the fee. Do not assume the ruling eliminates your obligation to pay without confirming current USCIS guidance at the time of filing.
Will I get a refund if the fee is ultimately invalidated?
USCIS has not issued any guidance on refunds. If the fee is ultimately invalidated on final appellate review, it is possible that USCIS would issue refund procedures — but that outcome is speculative at this stage, and there is no guarantee. Keep complete documentation of all $100,000 fee payments for petitions filed since September 21, 2025, so you are positioned to act on any future refund guidance if it is issued.
Does the fee apply to H-1B extensions or employer transfers for workers already in the U.S.?
No. The fee as imposed by Proclamation 10973 applies specifically to new H-1B petitions for beneficiaries located outside the United States who require consular processing. Workers already present in the United States in valid H-1B status — including those seeking extensions or transfers between employers — are not subject to the $100,000 fee under the current proclamation.
Why are there two contradictory federal court rulings on the same fee?
The Massachusetts court ruled the fee is a tax imposed without congressional authorization and an APA violation. The D.C. district court reached the opposite conclusion in the Chamber of Commerce case, upholding the fee as a lawful exercise of the President's immigration authority. Federal district courts in different circuits are not bound by each other's rulings — each court independently applies the law to the facts and arguments before it. The two rulings reflect genuine legal disagreement about the scope of presidential authority to impose fee requirements on nonimmigrant visa petitions. The circuit courts of appeals will resolve the conflict at the appellate level, and if they disagree with each other, the Supreme Court may ultimately settle the question.
Is this fee related to the H-1B lottery?
No — these are separate policies. The $100,000 fee applies at the petition filing stage and only to consular-processing cases. The H-1B lottery (random selection process) is a separate mechanism for allocating the annual cap of 65,000 H-1B visas plus 20,000 additional visas for advanced degree holders. The administration also announced in December 2025 that it planned to replace the existing lottery with a weighted system favoring higher-skilled and better-paid workers — but that is a separate regulatory development from the fee litigation.
Navigating H-1B Filings During the Fee Litigation?
The current uncertainty — struck down but stayed, appealed but unresolved, three courts with two different answers — creates real operational risk for employers planning consular-processing H-1B filings. Our attorneys work with employers to assess filing strategy, document fee payments, and monitor the appellate timeline as it develops.
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This article is for general informational purposes only and does not constitute legal advice. The H-1B fee litigation is actively evolving — court decisions, USCIS guidance, and the fee's operational status may change at any time. Please verify current requirements with USCIS and consult with a qualified immigration attorney before making any H-1B filing decisions.