United States: President Trump Extends $100,000 H-1B Fee, But Policy Currently Vacated by Court Order

USCIS remains barred from collecting the $100,000 H-1B fee under the September 2025 proclamation, which was due to expire on September 21, 2026. Since the new proclamation is issued as an extension, USCIS should be barred from collecting the $100,000 fee under the new proclamation as well. If USCIS takes the position that the new proclamation is outside of the purview of the existing court order, plaintiffs in the ongoing litigation are likely to quickly challenge that view.

During implementation of the September 2025 proclamation fee, the fee was requested and collected only by USCIS and only at the stage of petition adjudication. The fee was not requested by U.S. Customs and Border Protection or the Department of State and there is no indication of a mechanism for H-1B proclamation fee collection by these agencies. Should the immigration agencies take new positions or undertake new processes, these actions would be challenged in court by plaintiffs in the ongoing litigation challenging the proclamation fee.

On September 19, 2025, President Trump issued a proclamation that imposed a $100,000 fee on certain H-1B petitions from September 21, 2025 through September 21, 2026. The fee was generally imposed only on H-1B petitions that were filed for or only approvable for consular notification – petitions approved for changes of status or extensions of stay were exempt. Certain petitions were also determined to be exempt if filed on behalf of foreign nationals with valid H-1B visas.

In December 2025, a lawsuit was filed challenging the proclamation fee as an inappropriate exercise of power (State of California et al. v Markwayne Mullin, et al., Case No., 1:25-cv-13829 (D. Mass., filed Dec. 12, 2025)). On June 8, 2026, the federal district court vacated the H-1B proclamation fee policy in its entirety, taking the position that the $100,000 fee amounted to a tax, for which the proclamation and USCIS implementation were not a proper exercise of power, and that the policy violated the Administrative Procedure Act. Shortly thereafter, the district court stayed its own ruling, permitting USCIS to again collect the fee for a short time, but in July 2026, the Court of Appeals for the First Circuit refused to block the lower court ruling that vacated the $100,000 H-1B fee, again barring collection of the fee.

There should be no change to the status quo at this time; the new presidential proclamation extending the $100,000 H-1B proclamation fee policy should be subject to the existing court order blocking collection of the fee. However, as noted above, if the government takes a different position regarding the proclamation extension and policies, there could be confusion until clarity is sought and provided by the courts. In addition, USCIS continues to appeal the district court decision that vacated the $100,000 fee policy, so employers and foreign nationals should be aware that changes to the status quo are possible with little or no notice.

In addition, last month, USCIS separately proposed a regulation that would impose a fee of more than $103,000 on all cap-subject H-1B petitions. That fee would be separate from and in addition to the $100,000 H-1B proclamation fee, where applicable, if the proclamation fee were to be reinstated by further court order.

Fragomen is closely following all policy developments and litigation related to the H-1B program. Updates will be provided as developments occur.