$100,000 H-1B Fee Blocked Again After First Circuit Denies Stay

What Happened

On July 24, 2026, the [First Circuit Court of Appeals](https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/26-1699O-01A.pdf) denied the Trump administration's emergency motion to stay a district court order that had vacated the $100,000 H-1B supplemental fee. The three-judge panel found that the government failed to demonstrate a likelihood of success on the merits — the critical threshold for obtaining a stay pending appeal.

The ruling effectively lifts the temporary stay that U.S. District Judge Leo T. Sorokin had [granted on June 12](/blog/h1b-fee-stay-first-circuit-appeal-june-2026), which had allowed USCIS to resume collecting the fee while the government pursued its appeal. With the appellate court's denial, Judge Sorokin's [June 8 vacatur](/blog/federal-court-vacates-100000-h1b-fee-2026) is now operative: USCIS is prohibited from assessing the $100,000 fee on H-1B petitions.

The case, *State of California et al. v. Markwayne Mullin et al.*, No. 1:25-cv-13829 (D. Mass.), was brought by [20 Democratic state attorneys general](https://www.usatoday.com/story/news/politics/2026/07/24/appeals-court-rejects-trump-bid-to-halt-100000-h-1b-visa-fee-ruling/91044459007/) who argued that the $100,000 charge constituted an unconstitutional tax imposed without congressional authorization.

Who's Affected

The ruling directly impacts every employer that sponsors H-1B workers for consular processing — meaning workers who are abroad and need a new visa stamp. [Technology companies, healthcare organizations, universities, and startups](https://www.newsweek.com/donald-trump-100000-h-1b-visa-fee-court-blow-12243874) that rely on the H-1B program to hire skilled foreign talent are the primary beneficiaries.

• **Employers filing new H-1B petitions** no longer need to include the $100,000 supplemental fee for consular-processing cases. The pre-proclamation fee structure of roughly $2,000–$5,000 in total filing costs applies.
• **Foreign professionals seeking H-1B sponsorship from abroad** face dramatically lower costs, removing a barrier that had [made many overseas hires financially unrealistic](https://www.newsweek.com/donald-trump-100000-h-1b-visa-fee-court-blow-12243874), particularly at smaller employers.
• **Workers already in the U.S. on student visas** were largely exempt from the fee even while it was in effect, since the proclamation targeted new visas issued through consular processing rather than change-of-status filings.
• **Employers who already paid the fee** face an uncertain path to refunds. Fragomen [noted](https://www.fragomen.com/insights/united-states-federal-appeals-court-declines-to-stay-lower-court-order-vacating-dollar100000-h-1b-fee.html) it is "not yet clear how the ruling will affect petitioning employers who have already paid the fee."

Timeline: The Fee's Legal Journey

The $100,000 H-1B fee has been through a rapid series of legal reversals since its inception:

• **September 19, 2025:** President Trump issued [Proclamation No. 10973](https://www.businessinsider.com/federal-appeals-court-rejects-trump-h1b-visa-fee-2026-7), "Restriction on Entry of Certain Nonimmigrant Workers" (90 Fed. Reg. 46027), requiring a $100,000 payment with every H-1B petition for workers outside the United States.
• **December 12, 2025:** Twenty Democratic state attorneys general, led by California, filed suit in the U.S. District Court for the District of Massachusetts, challenging the fee as an unlawful tax.
• **December 2025:** In a parallel case, the U.S. District Court for the District of Columbia [upheld the fee](https://www.jurist.org/news/2026/07/us-appeals-court-continues-ban-on-100k-fee-for-h-1b-visas/) in a lawsuit brought by the U.S. Chamber of Commerce. That case is now on appeal in the D.C. Circuit.
• **June 8, 2026:** Judge Sorokin [granted summary judgment](/blog/federal-court-vacates-100000-h1b-fee-2026) to the plaintiff states, vacating the fee nationwide on the grounds that it constituted an unauthorized tax and violated the Administrative Procedure Act.
• **June 12, 2026:** Judge Sorokin [stayed his own ruling](/blog/h1b-fee-stay-first-circuit-appeal-june-2026) temporarily, allowing USCIS to resume collecting the fee while the government appealed to the First Circuit.
• **July 24, 2026:** The First Circuit [denied the stay](https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/26-1699O-01A.pdf), finding the government unlikely to prevail on appeal. The fee is now blocked.

What Attorneys Should Know

The First Circuit applied the [*Nken* factors](https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/26-1699O-01A.pdf) for a stay pending appeal and found the government failed to make a "strong showing" on the critical likelihood-of-success factor. The panel noted the remaining factors presented "at most, a mixed picture," citing *Am. Fed'n of Gov't Emps. Loc. 2305 v. U.S. Dep't of Veterans Affs.*, 177 F.4th 1, 13 (1st Cir. 2026), and *Ind. State Police Pension Tr. v. Chrysler LLC*, 556 U.S. 960, 960–61 (2009).

The government argued the $100,000 payment is an "immigration regulation" authorized by the broad language of 8 U.S.C. §§ 1182(f) and 1185(a) — which allow the president to "suspend the entry" of aliens or impose "any restrictions" he deems appropriate. The court was unpersuaded. Relying on *Skinner v. Mid-America Pipeline Co.*, 490 U.S. 212, 224 (1989), the panel emphasized that a clear congressional statement is required to delegate the power to impose what functionally operates as a tax. The court also cited the Supreme Court's recent analysis in *Learning Resources*, which held that synonymous terms like "regulation" do not encompass the power to levy a tax — and noted Congress's own pattern of explicitly delegating fee authority under the INA (e.g., 8 U.S.C. §§ 1184(c)(9)(A), 1184(c)(11)(A), 1184(c)(12)(A)).

The APA violations are also significant. The district court found that DHS and DOS implemented the Proclamation through ten separate agency actions between September 19 and October 20, 2025 — including revised fee schedules and DOS FAQs — without notice-and-comment rulemaking as required by 5 U.S.C. § 553. The court vacated these actions under 5 U.S.C. § 706(2)(C) (in excess of statutory authority) and § 706(2)(D) (procedural violations).

Practitioners should monitor the [D.C. Circuit case](https://www.jurist.org/news/2026/07/us-appeals-court-continues-ban-on-100k-fee-for-h-1b-visas/) closely. The D.C. District Court reached the opposite conclusion — upholding the fee — in the U.S. Chamber of Commerce challenge. If the D.C. Circuit affirms, the resulting circuit split would create a strong vehicle for Supreme Court review.

What Applicants Should Do

For H-1B applicants and their sponsoring employers, the practical effect is straightforward: the $100,000 fee is not currently in effect.

• **If your employer is preparing an H-1B petition:** The petition should be filed without the $100,000 supplemental fee. Standard filing fees (base fee, ACWIA fee, fraud prevention fee, and asylum program fee, totaling roughly $2,000–$5,000 depending on employer size) apply as they did before the proclamation.
• **If your employer paused sponsorship because of the fee:** This ruling may reopen the conversation. [Immigration attorneys and business groups](https://www.newsweek.com/donald-trump-100000-h-1b-visa-fee-court-blow-12243874) had warned that the $100,000 charge made overseas hires financially unrealistic for many smaller employers — that barrier is now removed.
• **If your employer already paid the fee:** Ask your immigration attorney about refund options. USCIS has not yet issued guidance on this point, but the legal basis for the fee has been vacated.
• **If you're in the U.S. on a student visa:** The fee generally did not apply to change-of-status filings (F-1 to H-1B). Your filing process is unlikely to change.

What's Next

The First Circuit's stay denial is not the final word. The court [did not rule on the merits](https://www.newsweek.com/donald-trump-100000-h-1b-visa-fee-court-blow-12243874) of the underlying appeal — it only determined that the government is unlikely to succeed and therefore should not collect the fee while the case proceeds. A full merits ruling from the First Circuit is still expected.

The administration [has signaled](https://www.fragomen.com/insights/united-states-federal-appeals-court-declines-to-stay-lower-court-order-vacating-dollar100000-h-1b-fee.html) it will continue the appeal. If the First Circuit ultimately affirms Judge Sorokin's vacatur, and the D.C. Circuit reaches a different conclusion in the Chamber of Commerce case, the resulting circuit split would make Supreme Court review more likely.

In the meantime, USCIS is expected to publish updated H-1B filing instructions reflecting the fee's invalidation. [Fragomen advises](https://www.fragomen.com/insights/united-states-federal-appeals-court-declines-to-stay-lower-court-order-vacating-dollar100000-h-1b-fee.html) that employers planning to file H-1B petitions that would have been subject to the fee should consult with immigration counsel before proceeding, as guidance may take several days to appear.