On July 24, 2026, a three-judge panel of the U.S. Court of Appeals for the First Circuit denied the federal government's motion to stay a district court order that had vacated the $100,000 H-1B payment requirement. The panel found that the government had not shown a strong likelihood of success on the merits of its appeal, concluding that the immigration statutes the administration relied on do not clearly authorize a fee of this size. As a result, the district court's June 8, 2026 order vacating the policy in State of California v. Mullin (No. 26-1699) remains in effect while the appeal proceeds. We want our clients to understand what this means in practical terms and what may still change in the months ahead.

On the evening of July 28, 2026, USCIS acknowledged the First Circuit's order and updated its H-1B Specialty Occupation webpage to confirm that it will not collect the $100,000 fee while the court's ruling stands. At the same time, USCIS made clear that the agency disagrees with the outcome and is evaluating its next steps. Notably, USCIS stated that if the current order is later lifted, it still intends to collect the payment. This means employers should treat the current relief as significant, but not necessarily permanent. Petitions that would otherwise have been subject to the fee, particularly those involving consular notification, may currently proceed without the additional payment based on USCIS's own guidance.

This is an interim victory in ongoing litigation, not a final resolution. Briefing on the merits of the government's appeal before the First Circuit is expected to conclude by October 16, 2026, after which the court will issue a substantive ruling on whether the fee can lawfully be imposed at all. Complicating matters further, a federal court in the District of Columbia previously reached the opposite conclusion in a separate case and upheld the fee, and additional challenges remain pending in other jurisdictions, including the Northern District of California. This kind of split among courts often increases the likelihood that the issue will eventually reach the Supreme Court, whether through an emergency application or in the ordinary course of the appeal.

For now, the $100,000 H-1B fee is not in effect and USCIS has confirmed it will not collect it. However, given the government's clearly stated intent to reimpose the fee if it regains the legal ability to do so, employers and foreign national employees should avoid assuming this issue is settled. We are closely monitoring developments in this case, along with the related litigation in other circuits, and will continue to issue updates as the situation evolves. If you have questions about how this may affect a pending or upcoming H-1B petition, please contact our office at 703-348-1663.

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