Appeals Court Blocks the $100,000 H-1B Fee

A federal court of appeals has declined to reinstate the $100,000 fee on certain H-1B petitions, denying the government's motion to keep the fee in effect while its appeal is decided. For now, employers are not required to pay the fee, and neither USCIS nor the Department of State may enforce it. The court of appeals’ decision was announced on Friday, July 24, 2026, and USCIS updated its website to indicate compliance with the decision on July 28, 2026.

That said, the government may appeal to the Supreme Court, insisting that the fee remain in effect until the merits of the case are decided, in which case the fee could apply again. It should also be noted that the fee is set to expire on September 21, 2026, unless the administration extends it or Congress decides to pass a law, requiring the fee.

The fee originated with a September 2025 presidential proclamation that directed a $100,000 payment to accompany new H-1B petitions, primarily for individuals who were not in the US at the time the petition was filed and needed to pick up a H-1B visa at the US Consulate in order to enter the U.S. to work in H-1B status. That sum is in addition to the ordinary filing fees, which range from $960 to $3,380 depending on the size and type of employer. A coalition of twenty states challenged the policy, and, in June, a federal court in Massachusetts invalidated the fee, holding that the payment amounts to a tax that only Congress has the authority to impose.

After the federal court struck the fee down, it briefly paused its own decision, allowing the fee to be collected while the government prepared its appeal. The government then asked the appeals court to keep the fee in place for the duration of the appeal. The appeals court denied the government’s request, finding that the government had not shown it was likely to succeed on the merits of the claim. The ruling is a procedural one, and the court of appeals has not yet officially decided whether it agrees with the lower court’s decision that the fee is unlawful.

Employers sponsoring H-1B workers who are outside the US may file the petition without the additional payment for the time being. Employers who already paid should retain their records, in the event refunds can be obtained.

This decision represents the current state of the law, which continues to evolve rapidly. We will continue to monitor the appeal and share updates as they develop.

This alert is for informational purposes only. Please contact us if you would like to discuss these developments further.