On July 24, 2026, the First Circuit denied the government’s motion to stay pending appeal of a federal district court’s order vacating the $100,000 supplemental H-1B fee. USCIS updated its official guidance on July 28, 2026, stating that while it “strongly disagrees” with the First Circuit’s order, it will comply with the court’s ruling while considering next steps. The upshot: practitioners can now file affected H-1B petitions without the supplemental payment or risk of adverse adjudication.
What changed
On June 8, 2026, the U.S. District Court for the District of Massachusetts vacated agency guidance implementing the $100,000 payment requirement for certain H-1B petitions in State of California v. Mullin. DHS filed a motion to stay pending appeal with the First Circuit, and the District Court order was administratively stayed while the government pursued that motion.
On July 24, 2026, the First Circuit denied the government’s motion, and DHS stated it will comply with the court’s order while considering next steps. The First Circuit declined to keep the $100,000 fee in place because the Immigration and Nationality Act does not expressly grant the fee-imposing power relied upon by the administration.
The temporary administrative stay expired, and the nationwide vacatur of the $100,000 payment requirement is actively in full force. Employers can now submit affected H-1B petitions and RFE responses without attaching proof of a $100,000 payment or requesting an exception, and adjudicators are now bound by agency guidance to process these filings without demanding the fee.
Why it matters
For H-1B employers and practitioners, this removes an immediate operational and financial burden. The $100,000 fee originated with a September 2025 Presidential Proclamation and was intended to apply to new H-1B petitions for beneficiaries outside the United States at the time of filing for petitions subject to consular processing. Practitioners no longer need to counsel clients to budget, locate, or submit proof of this payment for currently pending or new petitions.
However, this is not final. The underlying litigation on the full merits of the appeal remains ongoing before the First Circuit. DHS’s statement that it intends to collect the fee if the court order is lifted signals that the administration may attempt retroactive collection or issue demand notices if the decision is later reversed on appeal. Given the conflict between this Massachusetts ruling and a D.C. District Court decision last year that upheld the Presidential Proclamation, a circuit split suggests the constitutional question is bound for the Supreme Court.
Way forward
- File without the $100,000 payment. Petitions filed now should not include the supplemental fee or any request for exception under the vacated proclamation.
- Verify current USCIS guidance. Check the USCIS H-1B FAQ at https://www.uscis.gov/newsroom/alerts/h-1b-faq for any further updates before submitting petitions or RFE responses.
- Track the appeal. Monitor First Circuit proceedings in State of California v. Mullin, 1:25-cv-13829 (D. Mass.). The government may pursue Supreme Court review.
- Preserve documentation. If you or your clients have already paid the $100,000 fee, retain proof of payment. No refund or reimbursement process has been announced, but that may change as litigation develops.
Disclaimer
This article is for informational purposes only and is not legal advice. Fola Form is a software company, not a law firm. You should consult a licensed immigration attorney about your specific situation. Immigration policy and court orders can change without notice; verify all guidance against the primary source linked above before relying on it for a filing or client advice.