H-1B $100,000 fee: government appeals to the Ninth Circuit after a second nationwide injunction — still not collected
United States · Policy change · Government appealed 2026-10-09; as of 2026-10-16 both injunctions remain in force
| Country / region | United States |
|---|---|
| Category | Policy change |
| Date | Second nationwide injunction 2026-09-30; government appealed to the Ninth Circuit and requested a stay 2026-10-09; as of 2026-10-16 both injunctions remain in force |
| What happened | The $100,000 H-1B payment originated in Proclamation 10973 of September 2025, aimed at new H-1B petitions for workers entering from abroad. Litigation timeline: on 2026-06-08 the District of Massachusetts (California v. Mullin, brought by 20 states) held the implementing policy unlawful and vacated it; on 07-24 the First Circuit declined to restore enforcement; on 2026-09-18 the White House extended the fee to 2027-09-21 by Proclamation 11069; on 2026-09-30 the Northern District of California (Global Nurse Force v. Trump, brought by employers, unions and a church) again vacated the USCIS, CBP and State Department policies and issued a nationwide preliminary injunction — the court held the policies were legislative rules issued without APA notice-and-comment, and arbitrary and capricious for failing to consider alternatives and employers' reliance interests, barring enforcement under Proclamation 10973 and its extension 11069 until rulemaking and small-business impact analysis are completed. On 2026-10-09 the government appealed that order to the Ninth Circuit and asked for it to be stayed pending appeal; a case management conference is set for 10-27. As of mid-October both injunctions are in force and USCIS's official page confirms the fee is not being collected. |
| Impact on applicants | New petitions do not require the $100,000 payment now — file under the ordinary fee schedule. But a stay could arrive at any time, so check USCIS announcements and the latest orders before every filing. The medium-term variable is the separate front: DHS's proposed $103,265 fee on cap-subject H-1B petitions (comments closed 09-24) is not final — if adopted as proposed it would cover all cap-subject filings, including change of status inside the United States and advanced-degree-exemption cases, with cap-exempt employers excepted, and would stack with rather than replace the $100,000 payment. The uncertainty has already changed hiring behaviour: only about 700 employers paid the fee in the proclamation's first year, and valid registrations this cap season fell roughly 38.5% against last fiscal year (industry figure). Families planning the "study in the U.S. — H-1B — green card" path should keep alternatives in view: O-1, EB-2 NIW and the EB-5 set-aside categories. |
| Source | U.S. federal court orders and filings in Global Nurse Force v. Trump (N.D. Cal.) · USCIS official H-1B page · Bloomberg Law / Reuters (2026-10) ↗ Note on scope: litigation ongoing — the latest court orders and USCIS announcements govern; the 38.5% registration decline is an industry figure |
Source: USCIS official H-1B page and U.S. federal court orders ↗ · Last verified: 2026-10-17 · For reference only; not application or legal advice. Always check the official source for current rules.
FAQ
Is the $100,000 H-1B payment being collected right now?
Not as of 2026-10-16. Two independent federal court orders are in force: the District of Massachusetts vacated the implementing policy on 2026-06-08 in California v. Mullin (the First Circuit declined to restore it on 07-24); and the Northern District of California on 2026-09-30 in Global Nurse Force v. Trump again vacated the USCIS, CBP and State Department policies and issued a nationwide preliminary injunction, expressly covering Proclamation 10973 and its extension, Proclamation 11069. USCIS's official H-1B page confirms compliance with the court orders and that the payment is not being collected. The government appealed to the Ninth Circuit on 10-09 and asked for the order to be stayed — the appeal changes nothing by itself, but a stay could restore collection quickly.
How is the second injunction different from the first?
The key differences are independence and scope. The California order stands independently of the Massachusetts order and expressly names Proclamation 11069 of 2026-09-18, which extended the fee to 2027-09-21 — so even a government win in the First Circuit would not by itself bring the fee back. The court held the agency policies were legislative rules issued without the notice-and-comment procedure required by the Administrative Procedure Act, and arbitrary and capricious for failing to consider alternatives and employers' reliance interests; it did not rule that the President lacked authority under INA §212(f) to issue the proclamation — relief runs only against the implementing policies.
Where does this information come from?
Global Nurse Force v. Trump (N.D. Cal. No. 4:25-cv-08454), order of 2026-09-30 and notice of appeal of 2026-10-09; California v. Mullin (D. Mass.), decision of 2026-06-08 and First Circuit order of 07-24; USCIS's official H-1B page; reporting by Bloomberg Law and Reuters. Note on scope: litigation ongoing — always check the latest court orders and USCIS announcements, verified by us on 2026-10-17.
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