United States: Federal Appeals Court Declines to Stay Lower Court Order Vacating $100,000 H-1B Fee
July 24, 2026
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At a glance
- The appeals court ruling means that a lower court decision invalidating the $100,000 fee and prohibiting U.S. Citizenship and Immigration Services (USCIS) from collecting it should now take effect.
- USCIS is expected to issue updated guidance and filing procedures in light of the ruling, though it may take several days for that guidance to be announced.
The issue
The Court of Appeals for the First Circuit has refused to block a lower court ruling that vacated the $100,000 H-1B fee. 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 appeals court decision means that a temporary pause of the lower court order invalidating the $100,000 should be lifted, prohibiting U.S. Citizenship and Immigration Services (USCIS) 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.
Background
On June 8, in a lawsuit challenging the fee, a federal district court in Massachusetts vacated the policy in its entirety, taking the position that the $100,000 fee amounted to a tax, for which the presidential proclamation establishing the fee and USCIS implementation were not a proper exercise of power, and also 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 $100,000 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.
The district court case is State of California et al. v Markwayne Mullin, et al., Case No., 1:25-cv-13829 (D. Mass., filed Dec. 12, 2025).
What’s next for the $100,000 fee
USCIS is expected to issue new guidance and H-1B petition filing instructions consistent with the invalidation of the $100,000 fee, though it may take a few days for that guidance to be announced. Employers planning to file H-1B petitions that would have been subject to the fee – meaning those that are to be filed for or may only be approvable for consular notification – should consult with immigration counsel before proceeding.
The Trump Administration is expected to continue its appeal of the district court invalidation.
Fragomen is closely following this case and other lawsuits challenging the fee. Updates will be provided as developments occur.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
