First Circuit Denies Government Motion, $100,000 H-1B Fee Paused
On July 24, 2026, the U.S. Court of Appeals for the First Circuit denied the government's motion to keep the $100,000 H-1B application fee in effect while the appeal proceeds; the fee is therefore not currently in force. The article sets out the presidential proclamation on which the fee rests and the scope of its application, reviews the progress of three related lawsuits, recounts how the district court and the appellate court reached their rulings, and discusses possible next steps, including that the fee may expire automatically on September 21, 2026. It also notes that USCIS has said it will comply with the ruling suspending the fee, while the Department of Homeland Security still plans to collect the fee at a later date.
On Friday, July 24, 2026, the U.S. Court of Appeals for the First Circuit denied the government's motion. The government had sought to keep the $100,000 H-1B application fee in effect during the litigation, but the request was not granted.
This means that the $100,000 H-1B application fee is currently not in effect.
However, the final ruling in this case still awaits the First Circuit Court of Appeals. If the government appeals, the Supreme Court has the authority to issue a stay or other emergency relief to reinstate the fee during the litigation.
Background
The $100,000 H-1B application fee was implemented pursuant to a presidential proclamation dated September 19, 2025.
According to the fee guidance subsequently issued by U.S. Citizenship and Immigration Services (USCIS), the fee applies only to new H-1B applications filed on or after September 21, 2025, that require consular notification. The fee does not apply to H-1B visas issued before September 21, 2025, or to H-1B applications filed before that date. In addition, H-1B transfer, amendment, extension, or change of status applications filed and approved within the United States are also not subject to this fee.
Litigation Status
Currently, three lawsuits challenging the H-1B fee are pending in federal courts: Chamber of Commerce v. DHS (Case No. 25-5473) in the D.C. Circuit; Global Nurse Force v. Trump (Case No. 4:25-cv-08454) in the U.S. District Court for the Northern District of California; and this case, State of California v. Mullin (Case No. 26-1699), in the First Circuit.
The $100,000 H-1B fee remained in effect continuously from September 21, 2025. It was not until June 8, 2026, that State of California v. Mullin produced the first ruling affecting the fee. In its ruling that day, the U.S. District Court for the District of Massachusetts ordered that collection of the H-1B fee be suspended during the pendency of State of California v. Mullin.
Subsequently, on June 12, 2026, the federal district court issued an administrative stay to allow the First Circuit to consider the government's motion to maintain the fee. As a result, the fee briefly went back into effect.
On July 24, 2026, the First Circuit denied the government's motion to keep the fee in place, and the fee was suspended again. In its ruling, the First Circuit found that the government had failed to demonstrate a likelihood of success on appeal.
What's Next
Other courts hearing H-1B fee-related lawsuits have indicated they will hold off on rulings in their respective cases pending developments in California v. Marin. As a result, separate or conflicting rulings are not expected.
The U.S. government may seek emergency relief from the Supreme Court so that the fee can take effect while the First Circuit hears the full case. That said, the First Circuit could also issue a final ruling directly.
It is particularly noteworthy that, although litigation is ongoing, under the terms of the presidential proclamation itself, the fee will automatically expire on September 21, 2026, unless Congress acts or a new presidential proclamation is issued.
Key Points for Employers
As of July 28, 2026, USCIS has updated its H-1B Frequently Asked Questions (FAQ) page. The update indicates that USCIS will comply with the First Circuit's July 24 ruling suspending the fee. However, if the suspension is later lifted, the Department of Homeland Security (DHS) still plans to collect the fee retroactively.
Given that it remains unknown whether and how the government will appeal the First Circuit's ruling, employers are advised to work closely with experienced immigration counsel to develop the best strategy. This includes handling H-1B applications previously affected by the fee and responding to Requests for Evidence (RFEs) related to the fee.
