What It Means for Your Program
Today, a federal court struck down the $100,000 H-1B petition fee that has been in effect since September 2025. The ruling is significant, but it is not final. The government has signaled it will appeal, and an emergency stay could reinstate the fee on short notice. Do not file H-1B petitions without the fee until USCIS confirms it has updated its systems, and no stay is in place. Here is what happened and what we recommend doing next.
What Happened
On September 19, 2025, President Trump signed Presidential Proclamation 10973, imposing a $100,000 supplemental payment on all new H-1B petitions, effective September 21, 2025. The administration cited INA § 212(f) and § 215(a) as authority. The payment applied to:
- New H-1B petitions filed on behalf of beneficiaries outside the United States without a valid H-1B visa
- New petitions requesting consular notification, port of entry notification, or pre-flight inspection
- New petitions for change of status, amendment, or extension where the beneficiary was found ineligible
Twenty states, led by California, challenged the fee in federal court in Massachusetts. Today, U.S. District Judge Leo T. Sorokin (State of California et al. v. Mullin , No. 25-13829-LTS, D. Mass. June 8, 2026) granted summary judgment in favor of the plaintiff states and vacated the $100,000 requirement in its entirety.
A separate federal court in Washington, D.C. previously reached the opposite conclusion on the same Proclamation, upholding the fee in December 2025.
The Court’s Four Holdings
Judge Sorokin’s 42-page opinion rested on four independent grounds, any one of which would have been sufficient to vacate the fee:
- 1. The $100,000 payment is a tax, not a regulatory fee. Because hiring H-1B workers is lawful, the payment does not penalize unlawful conduct, it is a compelled revenue payment to the government. The Constitution’s Taxing Clause reserves that power exclusively to Congress.
- 2. INA §§ 212(f) and 215(a) do not delegate taxing power. The President’s authority to restrict entry does not include authority to impose taxes. The court relied in part on the Supreme Court’s 2026 decision in Learning Resources, Inc. v. Trump, 146 S. Ct. 628 (2026), which applied the same taxing-power analysis to IEEPA-based tariffs.
- 3. The implementing agency rules violated APA notice-and-comment requirements. USCIS, CBP, and State Department memoranda and FAQs were legislative rules that required public notice and comment. No good-cause or foreign affairs exception applied.
- 4. The policy was arbitrary and capricious. Agencies offered no reasoned explanation for the $100,000 figure, failed to account for employer reliance on the prior fee structure (~$960–$7,595 per petition), and never analyzed the impact on healthcare, education, and other non-IT employers.
Relief Granted: The court vacated the $100,000 requirement in its entirety and issued a declaratory judgment that the policy is unlawful. No permanent injunction was entered; vacatur was deemed sufficient. The government has announced it will appeal.
What This Means for Your Program
| Employer Category | Risk Level | Key Concern |
| Cap-subject tech, biotech, financial services employers | MODERATE – watch stay risk | Fee vacated, but government appeal and stay risk are real. Do not file new petitions without the fee until USCIS confirms its portal is updated and no stay is in place. |
| Cap-exempt employers (universities, hospitals, nonprofits, research orgs) | LOWER – if stay is not entered | Court’s reasoning expressly targeted the fee’s unanalyzed impact on education and healthcare. These employers are squarely within the ruling’s rationale. |
| Employers who already paid the $100K fee (Sep 21, 2025 – today) | UNCERTAIN | No refund mechanism has been announced. Monitor USCIS guidance. Refund availability depends on further agency and court action, not guaranteed by vacatur alone. |
| Employers with petitions deferred or abandoned due to the fee | OPPORTUNITY – pending stay | Cases previously shelved may now be viable. Work with counsel to identify and assess. |
What USILAW Recommends: Action Item
- Confirm before filing. Do not submit a new H-1B petition without the $100,000 fee until USCIS affirmatively updates its payment portal and you have confirmed with counsel that no emergency stay has been entered.
- Hold petitions in the pipeline. If you have petitions ready to file in the next 48–72 hours, pause and contact your USILAW attorney before submission.
- Document fees already paid. If your organization paid the $100,000 fee on any petition filed after September 21, 2025, preserve those payment records now in the event a refund mechanism becomes available.
- Identify deferred cases. Flag any H-1B petitions that were delayed or abandoned because of the fee. These may now be actionable, subject to the appeal outcome.
- Monitor for First Circuit action. A government application for an emergency stay could be filed within days. USILAW will issue an immediate update if a stay is granted or any other material development occurs.
What to Expect Next
| Government Appeal | The government is expected to appeal to the First Circuit and will likely seek an emergency administrative stay. A stay would immediately reinstate the $100,000 requirement pending appellate review. |
| USCIS Guidance | USCIS has not yet updated its fee schedule or payment portal. Until it does, employers should treat the fee as operationally in place. |
| Circuit Conflict | Two district courts have now reached opposite conclusions on the same Proclamation. Until the First Circuit, or the Supreme Court rules, the legal landscape remains unsettled. |
| Congressional Action | Congress could legislate a new H-1B fee structure that would survive judicial scrutiny by going through the constitutionally prescribed process. Any such statutory fee would be a separate legal question from the one decided today. |
USILAW is monitoring this case in real time. We will issue an immediate update if the government obtains a stay, the First Circuit acts, or USCIS issues updated filing guidance. To discuss how today’s ruling affects your H-1B program, contact your USILAW attorney directly or reach us at: