First Circuit Reinstates District Court’s Order Vacating $100,000 H-1B Visa Fee; Fee Not Currently In Effect

The U.S. Court of Appeals for the First Circuit has denied the federal government’s request to temporarily reinstate the Trump Administration’s $100,000 H-1B visa fee while litigation challenging the policy continues. As a result, the district court’s order vacating the policy remains in effect during the appeal process.

Background

On September 19, 2025, President Trump issued Presidential Proclamation 10973, which required employers to submit a $100,000 payment with H-1B petitions for foreign nationals located outside the United States.

Twenty states, led by California and Massachusetts, challenged the policy in federal court, arguing that the Administration exceeded its statutory authority and violated the Administrative Procedure Act (APA). The states also alleged that the policy would significantly impair their ability to recruit and retain highly skilled workers for public universities, educational institutions, and healthcare systems.

On June 8, 2026, the U.S. District Court for the District of Massachusetts ruled in favor of the states, finding the policy unlawful and vacating it in its entirety. The federal government subsequently appealed and sought a stay of the district court’s ruling pending appeal.

First Circuit’s Decision

On July 24, 2026, the First Circuit denied the government’s motion for a stay pending appeal. In reaching its decision, the court concluded that the government failed to make a strong showing that it is likely to succeed on the merits of its appeal.

The court specifically noted that:

• Congress did not clearly authorize the Executive Branch to impose a $100,000 H‑1B fee.
• The immigration statutes cited by the government do not expressly permit a fee of this magnitude.
• The government was unlikely to succeed on its argument that the policy was not subject to review under the Administrative Procedure Act (APA).

As a result, the district court’s order vacating the $100,000 H‑1B fee remains in effect while the appeal proceeds.

Practical Impact for Employers

As a result of the First Circuit’s ruling:

• The district court’s order vacating the $100,000 H-1B payment requirement remains in effect.
• Employers are not currently required to submit a $100,000 payment in connection with H-1B petitions.
• USCIS and the Department of State cannot enforce the vacated policy while the appeal remains pending.
• The underlying appeal will continue, and the legality of the Proclamation and the implementation of the policy has not yet been finally decided.

The First Circuit’s decision is procedural and does not resolve the underlying appeal. The court will later decide whether the Administration had the legal authority to impose the $100,000 H‑1B fee. Employers should continue monitoring developments closely, as a future appellate decision could affect H-1B filing requirements.

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