First Circuit Declines to Stay Order Vacating $100,000 H-1B Fee
July 24, 2026
The U.S. Court of Appeals for the First Circuit has denied the government’s request to stay the U.S. district court order that vacated the $100,000 H-1B supplemental fee, finding that the government had not shown a likelihood of success on the merits of its appeal. The practical effect is that the June 8, 2026 vacatur should now take hold, and USCIS should be prohibited from assessing the fee on covered H-1B petitions unless and until a higher court says otherwise. For employers, this is welcome news, but it is not the final word. The government is expected to continue pressing its appeal, and the fee’s status could shift again depending on further rulings. Employers should treat this as a meaningful development rather than a permanent resolution.
Key Takeaways
- The First Circuit’s ruling clears the way for the district court’s vacatur of the $100,000 fee to take effect, meaning USCIS should no longer require the fee for covered H-1B filings.
- USCIS has not yet issued updated guidance or filing instructions reflecting the ruling; employers should expect some lag before the agency formally aligns its procedures.
- The treatment of fees already paid remains unresolved. Employers who paid the fee under the prior guidance should not assume a refund process is automatically available.
- The government’s underlying appeal remains pending, and further proceedings (including possible Supreme Court review) could still change the outcome.
Background
The $100,000 fee originated with a September 2025 Presidential Proclamation directed at new H-1B petitions involving beneficiaries outside the United States, and was intended to apply at the time of filing for petitions subject to consular processing. A coalition of state plaintiffs challenged the fee, arguing that it functioned as an unauthorized tax and that its implementation violated the Administrative Procedure Act.
On June 8, 2026, the U.S. District Court for the District of Massachusetts agreed with the plaintiffs on both grounds and vacated the fee policy in its entirety. Days later, the district court entered a limited administrative stay of its own ruling to allow the government time to seek emergency relief from the First Circuit, and the fee remained in effect on an interim basis while that request was pending.
The First Circuit’s decision resolves that interim question by declining to pause the vacatur, though the underlying appeal on the merits continues. The case is State of California, et al. v. Mullin, et al., and it is one of several pending challenges to the fee in different federal courts, so employers should expect the legal landscape to keep evolving.
What Employers Should Do Now
- Hold off on assuming the fee applies to new filings until USCIS issues updated guidance, since agency systems and forms may not immediately reflect the court’s ruling.
- Flag any H-1B petitions in the pipeline that involve consular notification or that were being budgeted with the fee in mind, and revisit filing timing with immigration counsel.
- Document any fees already paid, including payment confirmations and filing dates, in the event a refund or credit mechanism is later established.
- Avoid over-correcting. Given the government’s stated intent to keep appealing, near-term reversals remain possible, and internal mobility and budget planning should build in that contingency.
Goel & Anderson is monitoring this litigation and related challenges closely and will issue further guidance as USCIS clarifies its filing procedures or as the appellate proceedings develop. If you have H-1B petitions that may be affected by this ruling, please reach out to your G&A immigration attorney before proceeding with filing decisions.
This alert is provided for informational purposes only and does not constitute legal advice. For guidance specific to your organization’s circumstances, please contact Goel & Anderson, LLC.
