The $100,000 H-1B Fee: Where Things Stand and What May Come Next

Businesses that rely on skilled foreign workers have spent the past year following one of the most closely watched changes to the H-1B program in recent memory. A presidential proclamation introduced a $100,000 payment requirement for certain new H-1B petitions. Court challenges followed, and the requirement now sits between conflicting rulings, a presidential extension, and a separate proposed rule.

At a Glance

  • The requirement began with a September 2025 proclamation and applies only to certain new petitions.

  • Courts have disagreed on its legality, and one ruling currently prevents enforcement.

  • On September 18, 2026, the President extended the proclamation through September 21, 2027.

  • DHS has separately proposed a new fee of more than $100,000 for cap-subject H-1B petitions.

The $100,000 Payment Requirement

On September 19, 2025, President Trump issued a proclamation imposing a one-time $100,000 fee on new H-1B petitions filed on or after September 21, 2025, for beneficiaries who would be approved through consular processing abroad. Consular processing is the process of obtaining a visa at a U.S. consulate outside the country. The administration stated that the measure was intended to address perceived abuse of the H-1B program and to protect U.S. workers, particularly in STEM occupations. 

The requirement does not apply to every H-1B worker. It generally does not reach petitions filed before the effective date or H-1B visas that had already been issued and remain valid. DHS may also grant exceptions where hiring is considered to be in the national interest. 

How the Courts Have Responded

Challenges were filed in several courts, and the results have differed.

  • Washington, D.C.: In December 2025, a federal district court upheld the fee in a case brought by the U.S. Chamber of Commerce and the Association of American Universities, concluding that it fell within the President's authority under the Immigration and Nationality Act. The appeal was argued before the D.C. Circuit in March 2026, and the most recent reports describe it as still pending. 

  • Massachusetts: In June 2026, a federal district court vacated the policy implementing the fee, concluding that it amounted to a tax Congress never authorized and that it violated the Administrative Procedure Act. The case was brought by a coalition of 20 states. On July 24, 2026, the First Circuit declined to pause that ruling while the government appeals, so the fee is not currently enforceable. 

  • California: A third challenge remains pending in California. 

The First Circuit's decision addressed whether the fee could be enforced during the appeal. The court will continue to review the case on its merits, so the underlying legal question remains open. 

Developments Since

Extension of the proclamation. On September 18, 2026, the President signed a proclamation extending the requirement for another 12 months, through September 21, 2027. The White House cited declines in registrations from large IT outsourcing companies in support of the policy. The extension does not, by itself, overturn the court order preventing enforcement. 

A proposed new fee. On August 25, 2026, DHS proposed a $103,265 fee for all H-1B cap-subject petitions, including those eligible for the advanced degree exemption. Unlike the proclamation, it would apply whether or not the petition involves a change of status or consular notification. DHS describes it as a way to recover costs across several federal agencies. Cap-exempt petitions and extensions would not be covered, and if finalized, the fee would apply to petitions filed in 2027. It is currently a proposal only, and court challenges to a final rule are considered likely. 

Where This Could Go

The outcome remains uncertain, but several possibilities stand out.

  • Supreme Court review is possible. The courts have reached conflicting conclusions, which leaves open the possibility of further review, potentially up to the Supreme Court. 

  • The proclamation-based fee may face difficulty. The First Circuit found that the government had not shown it was likely to succeed on appeal. The argument that the fee is really a tax has also drawn attention, including in the D.C. Circuit, where the Supreme Court's recent ruling limiting the President's tariff powers featured prominently. The D.C. Circuit's pending decision could change this picture. 

  • The proposed rule may become the primary path. A formal rule supported by a cost-recovery rationale appears designed to respond to concerns about process and taxing authority. Challengers may argue that it is still a revenue measure.

Some form of significant H-1B fee may ultimately remain in place, though possibly not in its current form and likely not without further litigation.

Questions to Consider

Employers and candidates evaluating H-1B plans may wish to consider:

  • whether the worker is inside or outside the United States, and whether consular processing is required;

  • whether the petition is cap-subject or cap-exempt;

  • how the timing of a filing relates to the spring 2027 cap season;

  • whether a national interest exception may be available;

  • whether any payments have already been made, and what records exist; and

  • how the proposed $103,265 fee could affect hiring budgets if it is finalized.

The situation continues to change, and the answers may look different by the time a petition is filed.

The $100,000 H-1B requirement has moved from a single proclamation to a multi-court dispute and a proposed federal rule. Some parts are now clearer, including that the fee cannot currently be enforced. Others, including whether it will return and in what form, remain open. Businesses that plan around these possibilities early may be better positioned to adapt as the courts and agencies act.


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