United States · Immigration Law · Employment Law
Do H-1B employers have to pay the $100,000 fee now that it runs to 2027?
If you're hiring an H-1B worker from abroad, or waiting on a petition, the $100,000 payment now runs to September 2027. A federal court set aside the guidance USCIS used to collect it, USCIS says it will comply while the government appeals, and some pending petitions could still be charged if the government wins.
- Written by
Emily Chen- Published
- Proclamation
- No. 11069, signed September 18, 2026
- Court case
- California v. Mullin, First Circuit No. 26-1699
At a glance
The practical result
- Action
- Presidential proclamation, extended 12 months
- Court status
- Fee guidance set aside; appeals court refused to pause it, 3-0
- Law
- Immigration and Nationality Act, the President's entry powers
- Immediate effect
- USCIS says it will comply with the court order for now
In this article
- What the September 2026 proclamation does
- Is the H-1B $100K fee in effect? What the court order changed
- Who the payment covered when USCIS was collecting it
- Why pending petitions still carry risk
- Where each H-1B fee lawsuit stands
- How the $100,000 H-1B fee got here
- What could change next: new H-1B rules for employers and workers
- What to check before you file or wait on an H-1B petition
- Your questions about the H-1B $100K fee
Short answer: Is the H-1B $100K fee still in effect? On paper, yes: on September 18, 2026, the President extended the $100,000 payment until September 21, 2027. In practice, a federal judge in Boston set aside the agency guidance that put the payment in place, the First Circuit refused to pause that ruling while the government appeals, and USCIS says it will comply for now. In a June court filing, USCIS said that if the government wins, it would ask for the payment on pending petitions that requested consular notification and try to revoke approvals of petitions that should have paid, so a petition filed today could still face the payment later.
What the September 2026 proclamation does
The first H-1B payment rule, Proclamation 10973, was signed on September 19, 2025, and was set to expire after 12 months. On September 18, 2026, Proclamation 11069 extended it for another 12 months, "until 12:00 a.m. eastern daylight time on September 21, 2027." It keeps the same rule: people coming to the United States to work in an H-1B specialty occupation are restricted from entering unless their petition is "accompanied or supplemented by a payment of $100,000." The Secretary of Homeland Security can still exempt a person, a company or an industry when hiring them is in the national interest.
The proclamation says the payment "has been made for over 700 petitions" since September 2025, and that the largest IT staffing and outsourcing firms cut their H-1B registrations from 24,946 to 2,055. It also tells the Secretaries of State, Labor and Homeland Security and the Attorney General to recommend, within 30 days after the next H-1B lottery, whether to extend it again.
The same day, the President signed Executive Order 14431. It tells the agencies that handle H-1B filings to take into account whether the sponsoring employer "directly or indirectly engaged in layoffs within the previous year or plans future layoffs" that hurt similarly situated U.S. workers. Within 30 days, the Labor Department's Wage and Hour Division must start reviewing past labor condition applications, the wage filings employers make before an H-1B petition, to decide whether to act against sponsoring employers. If you're a U.S. worker or an H-1B worker caught up in a layoff, an employment lawyer can explain how these reviews could reach your employer.
Is the H-1B $100K fee in effect? What the court order changed
Twenty states, led by California, sued in federal court in Boston on December 12, 2025. On June 8, 2026, U.S. District Judge Leo T. Sorokin ruled for the states. He found that the payment "amounts to a tax, not a penalty," and that the entry law the President relied on does not hand the President Congress's power to tax. His judgment set aside ten agency actions from September and October 2025, including USCIS's guidance, fee schedule and payment website, "insofar as they impose a $100,000 payment obligation on H-1B petitions." Judge Sorokin rejected the government's argument that relief should cover only the states that sued: he said setting aside an agency action cancels the action itself, not just its effect on the parties in the case.
On July 24, 2026, a unanimous First Circuit panel of Chief Judge David J. Barron and Judges Gustavo A. Gelpí, Jr. and Julie Rikelman denied the government's request to pause the ruling during the appeal. The panel said the government had not made a "strong showing" that it is likely to win, and noted that "the defendants do not dispute that neither § 1182(f) nor § 1185(a) has ever been used to impose a fee or payment of this kind." The appeal itself is still undecided.
USCIS's own H-1B page, last updated September 21, 2026, says DHS "strongly disagrees" with the ruling "but will comply with the court's order while DHS considers next steps. If this order is later lifted, DHS still plans to collect the payment." We found no new USCIS guidance under the September 2026 proclamation as of September 29, 2026. The court order set aside the agencies' 2025 guidance, not the proclamation. One immigration law firm, Mintz, wrote that USCIS may try to collect under the new proclamation despite the court order, which it expects would bring immediate litigation.
- $100,000
- payment the proclamation attaches to new petitions
- 20
- states that sued in Boston and won the ruling in June
- 700+
- petitions that paid since 2025, per the 2026 proclamation
Who the payment covered when USCIS was collecting it
Before the court order, USCIS applied the payment to new petitions for workers outside the United States, not to most people already here. Its H-1B page still describes those rules, even though the court set aside the guidance behind them. Before the proclamation, the government fees on an H-1B petition totaled "somewhere between $960 and $7,595," according to the district court.
| Situation | Under the 2025 guidance, since set aside |
|---|---|
| New petition for a worker outside the U.S. without a valid H-1B visa | Payment required |
| Petition asking for consular notification, port of entry notification or pre-flight inspection | Payment required |
| Change of status, amendment or extension inside the U.S. that USCIS grants, such as F-1 to H-1B | No payment |
| Change of status or extension that USCIS denies, for example after the worker leaves the U.S. | Payment required |
| H-1B visa already issued and still valid, or petition filed before September 21, 2025 | No payment, and travel in and out is not blocked |
| National interest exception granted by the Secretary of Homeland Security | No payment |
Why pending petitions still carry risk
In a sworn declaration filed in June, a USCIS associate director told the Boston court what the agency would do if the government wins. USCIS "would need to issue" requests for evidence or notices of intent to deny "for all pending cases that requested consulate notification where petitioners have not made the payment," and it "would seek to revoke the approval of petitions that would have otherwise been required to submit the $100,000 payment." The declaration adds that once a worker has been admitted, revoking the approval could lead to removal proceedings for the worker and any family members in H-4 status.
Hospitals are feeling this now. In a separate case in California, Global Nurse Force, which recruits nurses from abroad, told the court on September 24 that a Louisiana health system filed petitions for 93 nurses between July 29 and September 23, 2026. According to the company's chief executive, 48 of them had passed the 15-business-day premium processing window with no response, and the petitions would carry "a combined exposure of more than $9 million" if the payment is later enforced. Those figures come from the company, and the court has not ruled on them.
Where each H-1B fee lawsuit stands
At least three courts are handling challenges to the payment, and they have not all agreed. In Washington, Judge Beryl A. Howell ruled for the government in a suit by the U.S. Chamber of Commerce and the Association of American Universities on December 23, 2025. The D.C. Circuit heard their appeal on March 9, 2026, before Judges Wilkins, Katsas and Childs, and we found no decision on the docket as of September 29, 2026. On September 25, the Chamber told that court the new proclamation is "identical in relevant respects" to the first and "confirms the continued need for relief."
| Case | Court | Where it stands | Next step |
|---|---|---|---|
| California v. Mullin (20 states) | D. Mass.; First Circuit No. 26-1699 | Guidance set aside June 8, 2026; pause denied July 24, 2026 | States' brief due November 4, 2026 |
| Chamber of Commerce v. DHS | D.D.C.; D.C. Circuit No. 25-5473 | Government won in December 2025; appeal argued March 9, 2026 | D.C. Circuit decision, date not set |
| Global Nurse Force v. Trump | N.D. Cal. No. 4:25-cv-08454 | Requests to block the payment and certify a class are pending | Ruling on those requests and the motion to dismiss |
How the $100,000 H-1B fee got here
The President signs Proclamation 10973, requiring a $100,000 payment with certain H-1B petitions.
The payment requirement takes effect for petitions filed from 12:01 a.m. Eastern.
USCIS explains who must pay, adds the payment to its fee schedule and opens a payment website.
Twenty states, led by California, sue in federal court in Boston.
A federal judge in Washington rules for the government in the Chamber of Commerce case.
Judge Sorokin sets aside the agencies' guidance, then puts his ruling on hold while the government asks the First Circuit to pause it.
The First Circuit refuses to pause the ruling, and USCIS says it will comply with the court's order.
DHS proposes a separate $103,265 fee on H-1B cap-subject petitions.
The President extends the payment to September 21, 2027 and signs an order on H-1B sponsors and layoffs.
The extended restriction begins, and the First Circuit keeps the states' November 4 brief deadline.
What could change next: new H-1B rules for employers and workers
The next firm date in the main case is November 4, 2026, when the states' brief is due in the First Circuit, after the court gave them more time. The government asked the court to take that extension back, and on September 21 the court said no. A ruling for the government on appeal could revive collection and the plan to reach back to pending petitions.
Two DHS proposals would add to the pressure if they become final. The first, published August 25, 2026, would charge a separate $103,265 fee on every H-1B cap-subject petition, the kind filed after the H-1B lottery, including petitions under the advanced degree exemption. DHS says it is based on different legal authority, that employers subject to both would pay both, and that petitions exempt from the cap, which many universities and nonprofit research groups file, would not pay it. Comments closed on September 24, 2026, and it is still only a proposal. The second would remove the grace period of up to 60 days that E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN workers can get after a job ends, before their authorized stay runs out. Comments on that proposal close November 10, 2026.
If you hold a visa or are waiting on one, the fee case is not the only fight over how far immigration power reaches. In August, a federal judge in California ruled that using two immigration laws to cancel visas or deport people over protected speech is unconstitutional, and a separate 2027 green card lottery lawsuit asks a judge to make the State Department open a registration it never started. Both belong to a wider run of 2026 rulings on when courts will stop the government.
| Question | As of September 29, 2026 |
|---|---|
| Does a new H-1B petition need the $100,000 payment today? | Not for now. USCIS says it will comply with the court order, which set aside its payment guidance, fee schedule and payment website. |
| How long does the proclamation last? | Until September 21, 2027, unless extended again. |
| Could a petition filed now be charged later? | In a June filing, USCIS said it would seek payment on pending petitions that requested consular notification, and seek to revoke some approvals, if the government wins. |
| Is the $103,265 fee in effect? | No. It is a proposed rule, and comments closed September 24, 2026. |
| Is the 60-day grace period gone? | No. DHS has only proposed removing it, with comments due November 10, 2026. |
What to check before you file or wait on an H-1B petition
Several of these answers could change in weeks, so check again on the day you act. This is general information, not legal advice. An immigration lawyer can apply the rules to your petition, and if you don't have one, we can help you find one.
- USCIS's H-1B page on the day you file, for any change in whether the payment is being collected.
- Whether your petition asks for consular notification or a change of status inside the U.S., the line the 2025 guidance drew.
- The First Circuit appeal, No. 26-1699: the states' brief due November 4, 2026, and any ruling after that.
- Any request for evidence or notice of intent to deny on a pending petition that mentions the $100,000 payment.
- Layoffs at the sponsoring employer in the past year, which Executive Order 14431 tells agencies to weigh.
- Whether DHS finalizes the $103,265 cap-subject fee or the end of the 60-day grace period.
Your questions about the H-1B $100K fee
Is the $100K H-1B fee still in effect?
On paper yes, but not in practice for now. The proclamation now runs to September 21, 2027, but a federal court set aside the guidance USCIS used to collect the payment, and the First Circuit refused to pause that ruling while the government appeals. USCIS says it will comply with that order while DHS considers next steps, and that it still plans to collect the payment if the order is lifted.
Does the H-1B 100K fee apply to F-1 students changing status?
Not when USCIS granted the change. Under the 2025 guidance, since set aside, no payment was due when USCIS approved a change of status inside the United States, such as from F-1 to H-1B. It did apply when that change was denied and the worker needed a visa from abroad. USCIS has not said how it would apply the 2026 proclamation.
Could an employer be charged later for a petition filed now?
Possibly. In a sworn court filing in June 2026, USCIS said that if the government wins, it would issue requests for evidence or notices of intent to deny on pending petitions that requested consular notification and did not pay, and would seek to revoke approvals of petitions that should have paid.
Does the $100,000 fee apply to H-1B extensions or renewals?
Not when USCIS grants it. Under the 2025 guidance, an extension or amendment that USCIS granted to a worker inside the United States did not require the payment, and holders of a valid H-1B visa could still travel. The payment applied if USCIS denied the extension and the worker had to reenter on a new visa.
What is the proposed $103,265 H-1B fee?
It is a separate fee DHS proposed on August 25, 2026, for every H-1B petition filed through the lottery (cap-subject), on top of other fees and any proclamation payment. Petitions exempt from the cap would not pay it. It is not in effect, and comments closed on September 24, 2026.
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