First Circuit Blocks H-1B Fee
Breaking: the U.S. Court of Appeals for the First Circuit blocks the H1-B fee of $100,000. This July 24, 2026, decision is a key development that underscores ongoing legal uncertainty surrounding H-1B visa fees and highlights its importance for employers and legal professionals.
How We Got Here
Proclamation 10973, issued in September 2025, imposed a one-time $100,000 fee on new H-1B petitions for beneficiaries approved through consular processing. A 20-state coalition, led by Attorneys General Andrea Joy Campbell (Massachusetts) and Rob Bonta (California), sued, arguing the fee exceeded the executive’s statutory authority and violated the Administrative Procedure Act (APA).
The district court agreed and vacated the policy in June. The government sought a stay pending appeal. The First Circuit said no.
Why the Court Ruled This Way
The First Circuit’s order centers on two issues:
- Taxing power. The court found that 8 U.S.C. §§ 1182(f) and 1185(a) — the statutes the government relied on for “restriction” and “regulation” authority — don’t contain the “clear statement” the Constitution requires before the executive can impose what functions as a tax. The court noted that elsewhere in the INA, Congress has been explicit when authorizing fees (for example, STEM education funding under § 1356(s)), and that specificity is absent here.
- APA compliance. The government argued the fee wasn’t a “final agency action” subject to notice-and-comment, while separately claiming a stay would cause “irreparable harm” — a position the court found internally inconsistent. The implementing FAQs and fee schedule were deemed reviewable final action.
The government’s likelihood of success on the merits — a key factor in stay requests — was found weak.
The Complication: A Circuit Split
A federal district court in D.C. (Judge Howell) previously upheld the fee, creating a legal conflict that underscores ongoing uncertainty and the need for employers to remain alert for potential Supreme Court intervention.
What This Means for Employers
- Since the fee is currently unenforceable, employers holding petitions solely due to the $100,000 cost can confidently proceed with standard filing fees ($2,000–$5,000), knowing they are acting within the current legal landscape.
- Maintaining records of any paid fees is essential, as the court’s view of the fee as an unlawful tax could support future refund claims for employers.
- Because USCIS guidance may lag after court rulings, it is crucial to confirm current fee requirements with legal counsel before filing to avoid errors.
- The Wage-Weighted Selection Rule still applies. Finalized in December 2025, this rule continues to prioritize higher-salary petitions, independent of the fee litigation.
Looking Ahead
The outcome remains uncertain. With a circuit split in place and the constitutional question of executive taxing authority unresolved, this case is a strong candidate for Supreme Court review. Employers in healthcare, education, and R&D-intensive industries — sectors disproportionately reliant on H-1B talent — should treat this as a reprieve, not a permanent fix.
If your organization has H-1B petitions on hold, previously paid the surcharge, or needs guidance navigating the current filing landscape, contact Gunn-Menefee Immigration Lawyers at (502) 236-9900.