The H-1B $100K Fee Is Blocked Again — and DHS Put Its Plan B in Writing

Key takeaways

• The $100,000 payment is not being collected. A federal court vacated the agencies' implementation of it on June 8, 2026. That order sat under a temporary administrative stay while the government asked the appeals court to revive it — and on July 24, 2026 the First Circuit denied that request. DHS says it "will comply with the court's order."
• What the court killed was the implementation, not the proclamation. The district court vacated "the Policy" — the ten actions DHS and the State Department took to put the payment into effect. Proclamation 10973 itself still stands. That distinction is why DHS can say, in the same breath, that "[i]f this order is later lifted, DHS still plans to collect the payment." Treat this as suspended, not repealed.
• It's a $100,000 payment on new petitions for people abroad. The charge is an eligibility condition tied to new H-1B petitions where the beneficiary is outside the United States and can only be approved through a consulate. It is not a blanket tax on every H-1B.
• A lot of cases are outside it. People already in the US in valid status — approved through a change of status, extension, or amendment — and existing valid H-1B visa holders generally are not hit by the $100,000 payment.
• $100,000 ≠ $215. The proclamation payment is a completely separate layer from the ordinary $215 H-1B registration fee. Don't budget them as the same line item.
• Canadian and Mexican founders have a track this fee doesn't touch. The USMCA TN classification isn't subject to the $100,000 payment and has no lottery — but only for a defined list of professions, and it isn't a green-card path.

Is the H-1B $100k fee still in effect? No — the First Circuit refused to revive it on July 24, 2026

Updated July 30, 2026. This brief first ran on July 6, when an administrative stay had put the payment back in force — and it said so. On July 24 the First Circuit denied the government's stay motion, so the payment is not being collected. The timeline below has been rewritten. What did not change is the reason we told you to plan for movement.

Short answer: it is not being collected. If you read in June that a court had thrown the payment out, then read shortly after that it was back, both were true at the time. What settles the current state of play is a reasoned seven-page order dated July 24, 2026, in which the First Circuit refused the government's request to put the payment back while its appeal proceeds (order). Its opening disposition is four words: "We deny the motion."

Here's the timeline, with each date year-stamped so the order is unmistakable:

• September 19, 2025 — Proclamation No. 10973, Restriction on Entry of Certain Nonimmigrant Workers, is signed. It is published at 90 Fed. Reg. 46027.
• September 21, 2025, 12:01 a.m. EDT — it takes effect. From this point a $100,000 payment becomes an eligibility condition for new H-1B petitions filed after that moment, the 2026 lottery included.
• September 19 – October 20, 2025 — DHS and the State Department take, in the appeals court's count, ten separate actions to implement the proclamation, including a State Department FAQ and a revised DHS fee schedule. The states christen this bundle "the Policy" — and it is the Policy, not the proclamation, that ends up on trial.
• December 12, 2025 — twenty states sue, arguing the Policy violated the Administrative Procedure Act and was ultra vires.
• May 29, 2026 — the district court hears cross-motions for summary judgment.
• June 8, 2026 — the U.S. District Court for the District of Massachusetts (State of California v. Mullin, No. 1:25-cv-13829) grants the states summary judgment and declares the Policy "unlawful and … VACATED [it] … in its entirety" under 5 U.S.C. § 706(2).
• June 12, 2026 — ruling on the government's motion, Judge Leo T. Sorokin refuses to stay the judgment for the length of the appeal and allows only a temporary administrative stay — holding the line until the First Circuit could rule, on condition that the government file its motion there by June 18. During that window the requirement was back in force, which is why coverage from that period says the fee was "reinstated."
• July 24, 2026 — the First Circuit denies the government's stay motion (State of California v. Mullin, No. 26-1699; before Barron, C.J., Gelpí and Rikelman, JJ.). By its own terms the administrative stay ran only until this ruling, so the June 8 vacatur now governs.
• Now — DHS says it "strongly disagrees" but "will comply with the court's order while DHS considers next steps." In the same notice it adds: "If this order is later lifted, DHS still plans to collect the payment."
• Around September 21, 2026 — separately from the court fight, the entry restriction expires, absent extension, 12 months after the effective date, which the proclamation itself fixes at 12:01 a.m. EDT on September 21, 2025. The proclamation also directs the agencies to recommend, within 30 days of the H-1B lottery, whether extending it serves the national interest — so that recommendation lands before the expiry does. Neither the proclamation itself nor the USCIS H-1B FAQ addresses what happens to petitions already in the pipeline if it lapses.

Read that list again and notice what is not on it: any ruling against Proclamation 10973 itself. The states challenged how the agencies carried it out, the district court vacated exactly that, and the proclamation remains on the books. That is the whole reason DHS can announce compliance and a plan to resume collecting in the same paragraph. Suspended is not repealed.

One honest caveat, because it matters for anything you're about to file: this can change again with little notice. The state of play described here is as of July 30, 2026 — six days after the order. The appeal itself has not been decided; only the request to collect during the appeal has been refused. Before you submit a petition or wire anything, confirm the current court status and check the USCIS newsroom, which has been carrying the running status at the top of its H-1B FAQ.

Who actually pays the $100,000 — and who doesn't

This is where most of the confusion lives, so it's worth separating carefully — and it stays worth knowing even now, because it is the map of who would be exposed if the payment comes back into force. The payment is not a flat surcharge on every H-1B. It attaches to a specific fact pattern.

In plain terms: the payment is aimed at bringing a new worker into the country from abroad through a consulate. Someone who is already in the US and lawfully transitions into H-1B without leaving is, as a general matter, on a different footing. Eligibility rules are specific, though, so treat this as the shape of the rule — not a determination for your candidate.

Two things people routinely mix up — don't:

• The $100,000 payment is not the $215 registration fee. The ordinary H-1B electronic registration fee is $215 per registration — a cost-recovery fee USCIS set by rule in 2024, replacing the earlier $10 placeholder. It sits at a different layer of the process entirely. The proclamation payment sits on top of and entirely apart from it. When coverage refers loosely to "the H-1B fee," it's usually collapsing these two into one — they are not one.
• The wage-weighted lottery is a separate change. DHS finalized a rule weighting cap-subject H-1B selection by wage level (90 Fed. Reg. 60864, published December 29, 2025, effective February 27, 2026). It is a different track from this payment — don't blend the two when you plan.

What this means if you're hiring or sponsoring a foreign engineer right now

Most coverage of this story explains the policy. Almost none of it answers the question a small founder is actually asking: I want to hire a specific person — what do I do about it? Here's the practical version.

Start by mapping where your candidate already is. The single biggest cost fork is whether your hire can be approved inside the US or has to be approved abroad through a consulate. If they're already here in valid status — F-1 with OPT, H-4, L-2, TN, and so on — a petition that keeps them in status (change of status / extension / amendment) is the path that tends to sit outside the $100,000 payment. If the only way to approve them is a visa issued at a consulate abroad, that's the fact pattern the payment targets.

Budget the two fees separately. When you model the cost of a hire, keep the $215 registration fee and the possible $100,000 payment on different lines. Treating them as one number either over- or under-states your real exposure, depending on which one you drop.

Assume the number can move before you file. Two separate clocks are still running, and the July 24 order stopped neither. One is the appeal itself, which has not been decided — what the First Circuit refused was only the government's request to collect while the appeal proceeds, and DHS has said in writing that it "still plans to collect the payment" if the block is lifted. The other is the restriction's own 12-month expiry, around September 21, 2026 absent an extension. So the figure you plan around today may not be the figure in force when you actually file. Build a little optionality into your timeline: if you have a candidate who can be approved from inside the US, that route is less exposed to the court swings than a fresh consular case.

Keep the alternative doors in view. H-1B isn't the only classification. For Canadian and Mexican professionals there's TN (below); for people of extraordinary ability there's O-1; intracompany transfers have L-1. Each has its own eligibility gate, and none is a universal substitute — but if the H-1B math has gotten ugly for a particular hire, it's worth checking whether another door fits before you commit six figures.

This is general information about a fast-moving immigration change, not legal or immigration advice. Eligibility for any of these paths is specific to the person and the petition — confirm your situation with a licensed US immigration attorney before you file or pay anything.

The cross-border angle: Canadians, Mexicans, and the TN track this fee doesn't touch

If you're a Canadian (or Mexican) founder — or you're trying to hire a Canadian engineer into a US role — there's a track that sits entirely outside this whole drama.

Under USMCA, Canadian and Mexican citizens can work in the US in TN status. A TN is not subject to the $100,000 proclamation payment, has no annual cap and no lottery, and costs far less — a modest government filing fee rather than a six-figure payment. For the right role and the right person, it can be dramatically simpler than an H-1B.

The caveats matter, though, and it's easy to oversell this, so be precise:

• TN only covers professions on the USMCA designated list. If the role and the person's credentials don't map to a listed occupation, TN isn't available — it's not a catch-all.
• TN requires nonimmigrant (temporary) intent. It is a temporary work classification, not a step toward a green card, and pursuing permanent residence while on TN creates complications.
• It's a distinct track, not a drop-in H-1B replacement. Think of it as a separate door that this particular fee doesn't reach — for eligible professions — rather than a workaround.

There's a second read here for Canadian founders specifically. If hiring into the US has become this volatile — a six-figure cost that has switched on and off three times in seven weeks — then building the company's center of gravity in Canada, and hiring the engineer there, stops being a fallback and becomes a legitimate strategic option. If that's on your table, the Canadian side has its own address and setup questions: which programs actually check a business address is covered in using a Canadian business address for visa applications, and the founder-immigration route specifically in the Start-Up Visa address question.

Why it stalled: not immigration law, but the rule that a President can't invent a tax

Most coverage of this case files it under immigration. The reasoning that actually stopped the payment is not immigration law at all — and if you sell into the US, you have probably already met it in a different aisle.

Of the four factors that govern a stay, the First Circuit found the government had failed the one the panel treated as dispositive: whether it made a "strong showing" that it is likely to win its appeal. Having said so, it called the government's arguments on the remaining three "at most, a mixed picture." The claim the government could not get past was that the agencies acted "in excess of statutory … authority" under 5 U.S.C. § 706(2)(C) — and it could not get around that claim procedurally either, since the panel also rejected its argument that the Policy was not "final agency action" open to review in the first place.

The chain runs like this:

• A payment needs a clear delegation. Under Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 224 (1989), when the executive claims discretionary authority "to recover administrative costs not inuring directly to the benefit of regulated parties by imposing additional financial burdens, whether characterized as 'fees' or 'taxes'," Congress has to have spoken clearly. The label does not decide it.
• The government leaned on "any restriction." Proclamation 10973 claimed authority under 8 U.S.C. §§ 1182(f) and 1185(a). Section 1182(f) lets the President "impose on the entry of aliens any restrictions he may deem to be appropriate," which the government argued is broad enough to include a six-figure payment — pointing to Algonquin, where sweeping language was read to permit a monetary charge on imports.
• The court found the missing piece. In Algonquin, the statute did not merely have sweeping language; it also contained an "explicit reference" to the very duties the President wanted to impose. Neither § 1182(f) nor § 1185(a), nor any other relevant H-1B provision, references a payment requirement of this kind.
• And it borrowed a tariff case to read the word. To decide whether "restriction" reaches a tax, the panel pointed to Learning Resources, Inc. v. Trump, 607 U.S. 229 (2026), where the Supreme Court held that the synonymous word "regulation" did not include the power to impose a tax — and got there partly by looking at Congress's pattern of usage. The government never explained why the same method shouldn't apply here, and, as the district court had already noted, the pattern runs one way: when Congress imposes fees under the immigration statute, it says so outright (8 U.S.C. § 1184(c)(9)(A), (11)(A), (12)(A)) and even dictates how the money is spent (§ 1356(s), (m)).

That fourth link is the part worth underlining for anyone running a cross-border business. Learning Resources (No. 24-1287, consolidated with Trump v. V.O.S. Selections) is the IEEPA tariff case — the one whose holding was a single line: the statute "does not authorize the President to impose tariffs." It is what sent CBP into the refund program we walked through in who actually gets the tariff refund. The same reading is now doing work in a visa fight. Whether the instrument is a tariff on your imports or a payment attached to your engineer's petition, the question a court asks is the same one: did Congress clearly hand over the power to charge you?

For a founder, that is more useful than any prediction about this appeal. It tells you which executive-imposed costs are structurally fragile — the ones invented under broad language — and which are not: the ones resting on fee authority Congress granted explicitly, like the $215 registration fee, which isn't what this case is about.

The layer no court order can reprice

Here's the thing worth sitting with. In seven weeks the price of one H-1B hire moved by $100,000 three times — vacated on June 8, collectible again days later while an administrative stay held, and off the table again on July 24. That's the reality of building on top of visa policy: it's a variable you don't control, and it can move faster than your hiring plan.

You can't fix that. What you can do is make sure the parts of your company that don't swing on a court docket are solid — the same logic we apply to AI vendor dependency, where access can be switched off by forces outside your control. Your registered business address is on the stable side of that line. No proclamation, no stay, no appellate panel changes where your company officially sits, where its mail lands, or which address your bank, your registry, and your tax authority have on file. What that address needs to be — and why your home address usually isn't it — is covered in what a registered business address actually requires.

That's the layer worth getting right once, precisely because everything above it is in flux. Auteur runs a magazine for founders and a U.S. virtual mailbox underneath it: a real business address you control, while the immigration math keeps whipsawing. See how the mailbox works — and if you want the address settled before anything else moves, you can reserve a U.S. business address.

FAQ

How much is the H-1B fee in 2026? There are two different numbers, and they're often conflated. The ordinary H-1B electronic registration fee is $215 per registration, and it isn't what this case is about. Separately, the September 2025 proclamation adds a $100,000 payment as an eligibility condition on new petitions for beneficiaries who are abroad and must be approved through a consulate. That payment is not being collected: the agencies' implementation of it was vacated on June 8, 2026, and on July 24, 2026 the First Circuit refused to revive it while the government appeals. DHS says it will comply with the order — and that it still plans to collect if the block is later lifted.

Who is exempt from the $100k H-1B fee? As a general matter, the payment does not hit existing valid H-1B visa holders, or petitions approved through a change of status, extension of stay, or amendment for someone already inside the US in valid status. It's aimed at new petitions where the person is outside the US and can only be approved via consular notification. Eligibility is specific to the case, so confirm with an immigration attorney.

Is the $100k fee the same as the H-1B registration fee? No. The $215 registration fee is the electronic registration cost USCIS sets by rule under fee authority Congress wrote into the immigration statute. The $100,000 payment is a separate charge created by the September 2025 proclamation. They sit at different layers of the process and should be budgeted separately — collapsing them into "the H-1B fee" is where a lot of the confusion comes from.

Can Canadians avoid the $100k fee with a TN visa? For eligible professions, yes — the USMCA TN classification is not subject to the $100,000 payment and has no lottery or cap. But TN only covers occupations on the USMCA designated list, requires temporary (nonimmigrant) intent, and isn't a path to permanent residence, so it's a distinct track rather than a universal H-1B substitute.

Bottom line

The H-1B $100,000 payment is not being collected. The agencies' implementation of it was vacated on June 8, 2026, and on July 24, 2026 the First Circuit refused to put it back while State of California v. Mullin is appealed. But Proclamation 10973 was never struck down — only the Policy built to carry it out — and DHS has stated that it "still plans to collect the payment" if the block lifts. Suspended, not repealed. If you're hiring, three things matter: figure out whether your candidate can be approved inside the US (which tends to sit outside the payment either way), keep the $215 registration fee and the $100,000 payment on separate lines, and — because the appeal itself is still live — confirm the current status before you file.

For Canadian and Mexican founders, the TN track sidesteps this fee entirely for eligible professions. And whichever way the appeal goes, the one part of your setup that no court order reprices is where your business actually lives — so put that on solid ground while everything above it keeps moving.