H-1B $100,000 Fee Vacated: What Employers and EB-1A Attorneys Need Now

For eighteen months, the $100,000 fee functioned as a quiet employer filter. Some companies absorbed it as a cost of doing business. Many others stopped sponsoring new hires from abroad entirely. Still others pushed employees toward O-1 status, accepting the higher legal cost and complexity as preferable to writing a six-figure check per hire.

On June 8, 2026, a federal judge called the fee what it is: a tax. And the executive branch, the court held, cannot tax.

What Was the $100,000 H-1B Fee?

In September 2025, the Trump administration issued a proclamation titled "Restriction on Entry of Certain Nonimmigrant Workers." The proclamation required employers to pay $100,000 alongside any new H-1B petition that requested consular processing, meaning any petition for a worker entering the United States from abroad.

The fee applied to petitions filed on or after September 21, 2025. It was not subject to notice-and-comment rulemaking. It arrived as a presidential proclamation and took effect immediately.

The prior government-set filing fees for H-1B petitions ran between $2,000 and $5,000, depending on employer size, premium processing election, and applicable fraud-prevention charges. Adding $100,000 to that stack increased the direct cost of an H-1B hire from abroad by 20x to 50x.

What the fee did not apply to:

Exemptions existed from the start. Extensions of H-1B status filed while the worker remained in the United States were not subject to the fee. Transfers between employers for workers already in H-1B status in the U.S. were not subject to it. Change-of-status petitions from F-1 OPT to H-1B (filed within the U.S.) were also exempt, unless the petition simultaneously requested consular notification.

The fee hit hardest for employers making new hires from outside the country.

What the Court Decided on June 8, 2026

Twenty states filed suit in the U.S. District Court for the District of Massachusetts. On June 8, 2026, Judge Leo T. Sorokin issued a 42-page opinion vacating the fee in its entirety.

The court gave three independent grounds, any one of which is sufficient to sustain the vacatur.

Ground 1: The fee is an unauthorized tax

The Constitution vests the taxing power in Congress. The Immigration and Nationality Act does not delegate that power to the executive branch. The court's central finding: "The substance and application of the $100,000 payment reveal that it is a tax, regardless of what the payment is called."

A tax is not transformed into a permissible fee by labeling it one. The $100,000 payment bore all the hallmarks of a revenue measure: it was mandatory, uniform, payable to the government, and not tied to any specific regulatory service rendered to the payer. That is a tax. Congress did not authorize the President to impose it through the INA's entry-restriction powers.

Ground 2: Bypassed APA notice-and-comment

The proclamation appeared without any notice-and-comment period. Under the APA, substantive rules affecting regulated parties require prior notice and a genuine opportunity to comment. The administration did not follow that process. The rule was arbitrary and procedurally defective for this independent reason.

Ground 3: Failed to consider employer reliance interests

Employers had structured entire workforce plans around the existing H-1B fee structure. The proclamation offered a two-sentence acknowledgment of "processing changes" and moved on. The APA's arbitrary-and-capricious standard requires that the agency demonstrate it considered the disruption it was imposing on parties who had relied on prior policy. Two sentences on a 20x fee increase do not meet that standard.

The Circuit Split: D.C. Said Yes, Boston Said No

The Boston ruling does not exist in a vacuum. Three months earlier, on December 23, 2025, Judge Beryl Howell in Washington, D.C. upheld the same fee in Chamber of Commerce of the USA v. Department of Homeland Security, No. 1:25-cv-03675 (D.D.C.). That court found the proclamation within the executive branch's broad statutory authority to restrict entry of noncitizens.

The two courts read the same statute in opposite directions.

The D.C. Circuit was already fast-tracking its review of Judge Howell's ruling when Judge Sorokin issued his opinion. Now the First Circuit will also hear an appeal of the Boston ruling. Two circuit courts may produce conflicting precedents, making Supreme Court review virtually certain.

For practitioners: the question is not who is right. The question is which court's order governs your client's situation today and what happens if a higher court intervenes.

What the Ruling Does and Does Not Do

The ruling does not address any other Trump administration H-1B policy changes: the wage-level requirements, the site-visit expansion, the lottery integrity measures, or the H-1B specialty occupation re-scrutiny guidelines. Those are separate and remain in place.

The Appeal Window: Act Now, Not Later

Harris Beach Murtha called the ruling "a hiring window," and that framing is accurate. The window is open. It may not remain open.

The government's likely sequence:

1. File notice of appeal to the First Circuit
2. Simultaneously request an emergency stay from the First Circuit
3. If the First Circuit denies a stay, go to the Supreme Court's shadow docket

Each step takes days to weeks. A stay from the First Circuit could arrive in under two weeks from the notice of appeal. A Supreme Court emergency stay could arrive faster.

Practically: employers with a new hire who needs an H-1B consular petition should be in discussions with counsel this week, not next month.

Petitions filed during this window and approved before any stay is in place are likely protected. Petitions filed and still pending at adjudication if a stay is granted may face uncertain retroactive fee demands from USCIS. The agency's guidance on how to treat in-progress cases will matter enormously and has not yet been issued.

For EB-1A and O-1 Attorneys: What This Changes

The $100,000 fee affected the H-1B to EB-1A pipeline in three concrete ways, each worth revisiting now.

1. Employer willingness to maintain H-1B sponsorship

Most EB-1A self-petitioners are on H-1B status with their employer while the I-140 and I-485 are pending. H-1B extension petitions filed while the worker remains in the United States were never subject to the $100,000 fee. But many employers did not know that clearly enough, or feared that any H-1B filing carried the risk of triggering the fee. Some began exploring whether to drop H-1B sponsorship and let employees convert to O-1 or find other status solutions.

With the fee vacated, employers have one fewer reason to exit H-1B sponsorship. For clients whose H-1B extension or transfer was in doubt because of employer cost concerns, the June 8 ruling reduces that pressure.

2. Talent who shifted to O-1 to avoid the H-1B fee

Over the past nine months, a notable number of high-skilled workers were placed on O-1 status by employers who wanted to avoid the $100,000 cost. For many of those workers, O-1 was a suboptimal choice: it requires ongoing employer sponsorship, does not carry dual intent the same way H-1B does, and does not provide the AC21 portability protection that a pending I-485 on H-1B status provides.

Attorneys should revisit those cases. If the client would benefit from H-1B status for AC21 portability purposes, and if the employer is willing to refile, the window to do so without the fee is now open. See our full discussion of H-1B and L-1 adjustment of status strategy under PM-602-0199 for how AOS discretionary review affects these status decisions.

3. EB-1A and travel-ban country clients

For clients who are nationals of the 39 travel-ban countries, the past week produced two major developments: the June 5 Dorcas v. USCIS ruling vacated the benefit freeze on their I-485 cases, and the June 8 ruling removed the H-1B fee barrier for employers who need to petition them from abroad. Neither ruling is final. Both face appeal risk. But for a client who was frozen on two fronts simultaneously (I-485 stuck and H-1B hiring cost prohibitive), there is now movement on both.

See our analysis of the Dorcas benefit freeze ruling for the action steps on the I-485 and EAD side.

What Employers and Attorneys Should Do Now

The action list is short but time-sensitive.

For employers with new hires from abroad pending:

Evaluate every pending H-1B petition that was delayed because of the fee. Work with immigration counsel to determine which of those petitions should proceed now. Prioritize workers whose cases are most time-sensitive: expiring status, job start dates, or clients with EB-1A or EB-2 NIW I-140 approvals waiting on H-1B status.

For EB-1A and O-1 practitioners:

Review your caseload for clients who shifted to O-1 as a fee-avoidance measure. Assess whether H-1B is better for AC21 portability and AOS stability. Consult the EB-1A/O-1 AOS guidance and the O-1 to EB-1A green card pathway guide for each client's status.

For all practitioners:

Set a calendar alert for First Circuit filings. The government's motion for emergency stay, once filed, will be public. If a stay is granted, any pending petitions filed without the fee will need immediate attention.

The $100,000 fee is gone today. Whether it stays gone depends on courts that have not yet ruled. Act accordingly.

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