The $100,000 H-1B Fee: Proclamation 10973 and the Court Challenges in 2026

In September 2025 the President imposed a $100,000 payment on certain new H-1B petitions. A year later, courts have split, the requirement has been switched on and off, and a renewal proclamation has been challenged. This article sets out the timeline and the practical questions to check before any filing.

What the proclamation required

H-1B is the main temporary visa for professionals in specialty occupations (8 U.S.C. § 1184). On September 19, 2025, the President signed Proclamation 10973, which conditioned the entry of certain new H-1B workers on a $100,000 payment by the sponsoring employer. The proclamation relied on INA § 212(f), which allows the President to suspend or restrict the entry of classes of noncitizens, and on INA § 215(a). Agency guidance and employer advisories described the requirement as aimed at new petitions, particularly for workers outside the United States, rather than at extensions or changes of status for people already in H-1B or another status. Because that scope was defined in guidance that changed over time, employers should read the current USCIS instructions rather than relying on older summaries.

For background on the program itself, see our articles on the H-1B lottery and second-round selections and on moving from F-1 to H-1B.

A split in the courts

Two lines of litigation reached opposite conclusions:

• District of Columbia. The U.S. Chamber of Commerce and the Association of American Universities argued that the fee exceeded presidential authority and should have gone through notice-and-comment rulemaking. In December 2025 the district court ruled for the government, finding the requirement within the President's authority over the entry of noncitizens. The plaintiffs appealed to the D.C. Circuit, which heard argument in March 2026.
• District of Massachusetts. A coalition of 20 states led by California challenged the policy. On June 8, 2026, the court vacated the agency guidance implementing the payment, concluding that it operated as a tax rather than an entry restriction, and that the President lacked authority to impose it. The judge temporarily paused his own ruling while the government sought emergency relief, but on July 24, 2026 the First Circuit denied the government's request for a stay pending appeal. As a result, the payment was not enforceable while that appeal continued.

The September 2026 renewal

The original proclamation was written as a temporary, 12-month measure. A proclamation dated September 18, 2026 extended the restriction for one more year. Commentators noted that the renewal did not address the pending litigation, and on October 1, 2026 national reporting described a further federal court ruling against the latest version, including the September 2026 proclamation. Appeals remain possible in every case, including a request to the Supreme Court. This is an unsettled area: the status can change between the day a petition is prepared and the day it is filed.

What employers and workers should do now

• Check status on filing day. Review the USCIS H-1B page and any current alerts before submitting a new petition.
• Document the beneficiary's location and status. Whether a worker is inside the United States and changing status, or abroad and consular processing, has mattered under the guidance.
• Plan for long-term status. Many H-1B workers rely on employer-sponsored green cards. Delays in labor certification or immigrant petitions can be challenged when they become unreasonable; see these overviews of DOL PERM labor certification delays and Form I-140 petition delays.
• Protect dependents. H-4 spouses may have their own work authorization issues; see H-4 EAD work authorization.

Employers who have dealt with the fee in practice share their experience in our report on how Dallas businesses managed H-1B costs.

The obligations that did not change

Whatever happens to the $100,000 payment, the core H-1B rules remain. Before filing a petition, the employer must obtain a certified Labor Condition Application from the Department of Labor and must pay the H-1B worker at least the higher of the actual wage paid to similar employees or the prevailing wage for the occupation and location (8 U.S.C. § 1182(n)). Employers must also post or provide notice of the filing, keep a public access file, and notify USCIS of material changes in employment. Compliance with those obligations is often reviewed during site visits and enforcement actions.

Because the fee targeted new workers coming from abroad, some employers shifted toward hiring candidates already in the United States in another status, such as F-1 students with practical training. Each route has its own requirements and timing.

Frequently Asked Questions

Is the $100,000 H-1B payment required today?

It depends on the date and the latest court orders. After July 24, 2026 the Massachusetts vacatur was in effect pending appeal, and a renewal proclamation from September 2026 has itself been challenged. Check USCIS on the day you file.

Does the fee apply to H-1B extensions?

Agency guidance focused on certain new petitions, generally for workers outside the United States, not on extensions or changes of status. Confirm against current USCIS guidance.

Can an employer recover a payment already made?

That depends on the final outcome of the litigation and any refund process the government adopts. Keep proof of payment.