Just when employers thought they had a handle on the $100,000 H-1B fee, the litigation took another turn. On July 24, 2026, the First Circuit Court of Appeals declined to let the government reinstate the fee while its appeal plays out.
A quick recap
We’ve been tracking this fee since before it even took effect. Back in September 2025, we warned that the $100K fee was a distraction from bigger changes employers needed to watch. A few weeks later, once it took effect, we broke down who was actually subject to it and who was exempt. And in June, we reported that a federal judge in Boston struck it down, ruling it was an unlawful tax that no statute authorized the executive branch to impose.
That June ruling from Judge Sorokin is exactly what was at issue in this latest decision.
The First Circuit Weighs In
After Judge Sorokin vacated the fee nationwide, the government asked the district court to pause its own ruling while it appealed. The district court refused but agreed to a brief administrative stay so the government could ask the First Circuit for emergency relief instead. On July 24, the First Circuit said no.
Importantly, this wasn’t a ruling on whether the fee is ultimately lawful, a question that is still working its way through the appeal. This was narrower: the court found the government hadn’t shown a strong likelihood of winning that appeal and stated that before the executive can impose a financial burden like this fee, tax, or otherwise, Congress has to have clearly authorized it. The court wasn’t persuaded that either of the statutes the administration relied on gets there, especially given how explicitly Congress has authorized other H-1B-related fees elsewhere in the INA.
What This Means for Employers Right Now
With the stay denied, Judge Sorokin’s June 8 vacatur is back in force, and it applies nationwide, not just in the states that sued.
A few practical points worth flagging for anyone with H-1B petitions in the pipeline:
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The $100,000 payment should not be required on covered petitions (beneficiaries outside the U.S., consular-notification cases) while this holds. USCIS has specifically acknowledged this decision and has confirmed that it will comply with the court order. However, they also state that they strongly disagree with the First Circuit’s order and that if this order is later lifted, they will collect the payment.
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Change of status, amendment, and extension filings for workers already in the U.S. were never within the fee’s scope in the first place.
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USCIS and DOS haven’t issued updated public guidance reflecting this ruling yet, so don’t assume agency systems and forms have caught up immediately.
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If you already paid the fee, hold onto every payment record. No refund process exists yet, and clean documentation will matter if one ever does.
Conclusion
While the government will continue to pursue its appeal, the First Circuit’s refusal to stay the district court’s decision is another significant setback for the administration’s attempt to impose the $100,000 H-1B fee. Unless and until a higher court reverses the ruling, the nationwide vacatur remains in effect, meaning employers should not be required to pay the fee on any H-1B petitions. For now USCIS has agreed not to collect the fee.
Employers should continue monitoring developments, as the litigation is not yet over and USCIS and the Department of State may take time to update their public guidance. For now, however, this decision provides welcome clarity and represents another major legal obstacle for the fee’s future.
If you receive a Request for Evidence or other agency request seeking payment of the $100,000 fee, you should respond by citing the district court’s nationwide vacatur and the First Circuit’s decision declining to stay that ruling pending appeal. Additionally, reference USCIS’s agreement not to collect the fee.
If you have questions regarding this decision or its impact on your H-1B filings, please contact PSBP Partner Chris Prescott at cprescott@psbplaw.com.