Quick Takeaways

• Follows June 8 ruling halting imposition of $100,000 fee for certain H-1B Petitions
• First Circuit Court of Appeals agreed with lower court’s ruling that deemed $100,000 fee an unconstitutional tax and in violation of the Administrative Procedure Act
• USCIS has published updated guidance regarding H-1B fee while government plans next steps

On July 24, 2026, the First Circuit Court of Appeals refused to lift the district court-issued, nationwide injunction on USCIS imposing and collecting the $100,000 fee for certain new H-1B Petitions. 

The original suit, brought by 20 state attorneys general, sought to halt the fee on the basis that the President does not possess the power to levy what amounts to a $100,000 tax for many H-1B Petitions; and that even if the President possessed that power, the new fee, in addition to being arbitrary and capricious, also failed to undergo the customary notice and comment period, all in violation of the Administrative Procedure Act (APA). In granting the nationwide injunction on June 8, 2026, the lower court held that the government was unlikely to prevail on the merits of the case – i.e., that the $100,000 fee was likely to be found an unconstitutional exercise of executive power that also violated the APA – and that the irreparable harm suffered by businesses across the country justified the order for USCIS to cease collecting the fee while the suit proceeded through the courts. 

In refusing to lift the district-court-issued injunction, the three-judge panel of the First Circuit Court of Appeals agreed with the lower court’s reasoning. Specifically, the court held that the government “failed to make a strong showing as to the critical likelihood-of-success factor [1 of 4 factors considered when seeking an injunction],” insomuch as the court was unconvinced that the President inherently has or has been statutorily delegated the authority to impose a $100,000 tax reserved for Congress, or that the fee does not constitute a final agency action subject to the APA.   

While the government is likely to appeal the injunction to the Supreme Court, USCIS has published updated H-1B-related guidance in light of the First Circuit’s ruling.

In the meantime, we strongly suggest that any entity considering whether to file an H-1B Petition subject to the $100,000 fee, but discouraged by the immense price tag, move quickly to secure the admission and employment of specialty occupation workers. The immigration attorneys at Green & Spiegel are adept at handling such matters and are available to discuss your case, so please do not hesitate to contact our office.