Appeals Court Blocks $100,000 H-1B Fee for Now

A U.S. appeals court has refused to pause a lower court’s decision striking down a controversial $100,000 payment requirement for certain H-1B visa petitions.

On July 24, the U.S. Court of Appeals for the First Circuit denied the federal government’s motion to stay a district court’s June 8 order vacating the $100,000 fee.

That means the payment requirement cannot currently be enforced while the government’s appeal continues. The appeals court found that the Trump administration was not likely to succeed in its argument that the district court ruling should be struck down. The court, however, did not rule on whether the policy itself is ultimately lawful.

As of now, U.S. Citizenship and Immigration Services (USCIS) is barred from assessing the fee on H-1B petitions. It is not yet clear how the ruling will affect petitioning employers who have already paid the fee.

Specialty Credential: U.S. Employment Immigration

President Donald Trump issued a Presidential Proclamation Sept. 19, 2025, requiring that consular processed H-1B petitions be accompanied by an additional $100,000 payment.

Three different lawsuits were filed challenging the proclamation.

On June 8, a federal district court in Massachusetts vacated the policy in its entirety, taking the position that the extraordinary fee amounted to a tax, and ruling that the policy violated the Administrative Procedure Act.

The district court granted summary judgment to the plaintiffs in the case, meaning that USCIS was not permitted to collect the fee from H-1B employers. Shortly thereafter, the district court stayed its own ruling, permitting USCIS to collect the fee while the federal government appealed to the First Circuit.

“USCIS is expected shortly to release instructions on how employers can resume filing H-1B petitions, including H-1B cap petitions,” said Chris Musillo, managing partner at Musillo Unkenholt in Cincinnati. “For any H-1B petition requiring consular notification that you were holding or budgeting for solely because of the $100,000 fee, you may proceed without including the fee for now.”

Employers planning to file H-1B petitions that would have been subject to the fee should consult with immigration counsel before proceeding. Employers who previously paid the amount should preserve proof of payment and wait for formal agency guidance or consider legal advice regarding recovery.

The victory for employers may be short-lived, said Mary Kate Fernandez, an attorney in the New Orleans office of Adams and Reese. “Given the conflict between this Massachusetts ruling and the decision out of the D.C. District Court last year that upheld the Presidential Proclamation imposing the fee, the circuit split suggests the constitutional question is bound for the Supreme Court,” she said. “The government is expected to file an emergency application for a stay with the Supreme Court. Under the court’s emergency shadow docket procedures, the justices could potentially issue a ruling on the stay [at any time].”

Employers should not assume the issue is permanently resolved, said Rahul Reddy, founding partner of Reddy Neumann Brown based in Houston. “The $100,000 requirement could return if a higher court grants a stay, if the government ultimately wins the appeal, or if Congress passes legislation authorizing such a payment,” he said.

Musillo added that his office is continuing to track this litigation, State of California v. Markwayne Mullin, as well as the other two cases, Chamber of Commerce v. DHS, on appeal at the D.C. Circuit, and Global Nurse Force v. Trump, pending in the Northern District of California.