Labor & Employment Developments Blog

On Friday, July 24, 2026, the US Court of Appeals for the First Circuit denied the government's motion to put its $100,000 H-1B fee in effect while the challenge against it remains pending.

This means that the $100,000 H-1B fee is not currently in effect.

However, the final decision on the case remains pending with the First Circuit, and if appealed by the government to do so, the Supreme Court has authority to issue a stay or other emergency relief of the First Circuit’s order to put the fee back into effect while the case remains pending.

Background

The $100,000 H-1B fee was implemented by Presidential Proclamation on September 19, 2025.

According to USCIS’s subsequent guidance on the fee, the fee applies only to new H-1B petitions filed for consular notification on or after September 21, 2025. The fee does not apply to H-1B visas issued prior to September 21, 2025 or H-1B petitions filed prior to September 21, 2025. The fee also does not apply to H-1B transfer, amendment, extension, or change of status petitions filed and approved from within the US.

Litigation

Three cases challenging the H-1B fee are currently pending in federal court: Chamber of Commerce v. DHS, 25-5473, (D.C. Cir.); Global Nurse Force v. Trump, 4:25-cv-08454, (N.D. Cal.); and the instant case, State of California v. Mullin, 26-1699, (1st Cir.).

The $100,000 H-1B fee was in effect without interruption from September 21, 2025 until the first order affecting its implementation was issued on June 8, 2026 in State of California. In its June 8, 2026 order, the US District Court for the District of Massachusetts put the H-1B fee on hold while State of California is pending.

The fee was placed back into effect on June 12, 2026 based on an administrative stay from the US District Court while the First Circuit considered the government’s motion to keep the fee in effect.

On July 24, 2026, the First Circuit denied the government’s motion to keep the fee in effect, and the fee was put back on hold. The First Circuit’s order included a statement that the government did not show it was likely to succeed on appeal of the case.

What’s Next

The other courts considering challenges to the H-1B fee have indicated that they will suspend decisions on their matters while State of California proceeds, so there is not an expectation that other cases will issue separate or conflicting orders.

The US government may appeal to the Supreme Court for emergency relief to allow the fee to go into effect while the full case decision is being considered by the First Circuit, or the final decision may be rendered by the First Circuit.

Take special note that although litigation remains pending, absent action taken by Congress or a successive Presidential Proclamation on the fee, the fee is already set to expire on September 21, 2026, per the Presidential Proclamation’s own language.

Key Takeaways for Employers

As of July 28, 2026, USCIS has updated its H-1B FAQ page to reflect that USCIS will comply with the First Circuit’s July 24, 2026 order putting the fee on hold, but if the order is later lifted, DHS still plans to collect the payment.

As this leaves a question as to whether and how the government may appeal the First Circuit’s order, employers are advised to work closely with an experienced immigration attorney to determine their best strategy for filing H-1Bs that were previously subject to the fee and for responding to outstanding Requests for Evidence (RFEs) related to the fee.

The KMK Law Labor & Employment team is closely monitoring developments related to the $100,000 H-1B fee and is available to assist employers with any questions related to employers’ H-1B filing strategy.