Immigration Law Insights

On September 18, 2026, President Trump issued a proclamation extending the $100,000 supplemental payment requirement imposed on employers filing certain H-1B visa petitions through September 21, 2027. The Trump administration previously imposed the steep H-1B fee in September 2025, but a federal court in Massachusetts vacated the fee policy and blocked USCIS from collecting the fee in June of this year. Less than two weeks after the extension, on September 30, 2026, the U.S. District Court for the Northern District of California issued a second order blocking the fee. As a result, employers are not currently required to pay the $100,000 fee, but the government has appealed, and further developments are likely.

Background: The $100,000 H-1B Fee and Ensuing Litigation

On September 19, 2025, President Trump issued a proclamation imposing a $100,000 “supplemental payment” on employers submitting petitions for new H-1B visas. Notably, the fee did not apply to H-1B petitions for change of status, extension of status, or change of employers. USCIS collected the $100,000 H-1B fee for approximately ten months until federal litigation halted enforcement.

On June 8, 2026, a federal judge vacated the $100,000 fee requirement, holding that the payment functions as a tax rather than as a permissible fee. The court reasoned that the Immigration and Nationality Act does not grant the President power to levy taxes and that the taxing power resides exclusively with Congress under the Constitution.

On June 12, 2026, the court temporarily stayed its order to allow the government to appeal and to give the appellate court time to rule on the government’s request for a stay of the June 8 decision. During this brief window, USCIS resumed collecting the fee.

On July 24, 2026, the U.S. Court of Appeals for the First Circuit dissolved the stay, effectively reinstating the district court’s order and once again blocking USCIS from collecting the fee. The government has appealed the First Circuit’s decision, but the court has not yet issued a final ruling on the merits. USCIS has indicated that it intends to collect the fee retroactively if the order is reversed on appeal. 

Trump Administration Extends the $100,000 Fee Despite Court Order

On September 18, 2026, President Trump issued the “Restriction on Entry of Certain Nonimmigrant Workers” proclamation, extending the $100,000 H-1B fee for an additional twelve months. The proclamation states that the extension was necessary in the interest of national security, asserting that the current administration of the H-1B program without the supplemental payment poses a “threat to the labor market that would be detrimental to the interests of the United States.”

Because the administration’s policies implementing the fee had already been vacated in the Massachusetts litigation, many immigration law practitioners expected the fee to remain blocked, but there was concern that USCIS would argue that the new proclamation fell outside the scope of the existing order. However, the Northern District of California’s recent decision in Global Nurse Force v. Trump has resolved much of that uncertainty.

U.S. District Court for the Northern District of California Blocks the Fee and Its Extension

On September 30, 2026, the U.S. District Court for the Northern District of California granted, in part, a motion for preliminary injunction in Global Nurse Force v. Trump, Case No. 4:25-cv-08454 (N.D. Cal. 2026). The lawsuit was filed in October 2025 by a coalition of labor unions, employers, and nonprofit organizations.

According to U.S. District Judge Haywood S. Gilliam, Jr., the extension violates key provisions of the Administrative Procedure Act (APA): “There is no question here that Agency Defendants failed to consider any alternatives or the reliance interests of the regulated parties. As such, Plaintiffs are likely to succeed on their claim that the Agency Policies are arbitrary and capricious.”

The court prohibited USCIS from enforcing or implementing the fee policies until the required notice-and-comment rulemaking and regulatory flexibility analyses have been conducted. The government has appealed this decision.

What This Means for Employers

• The fee, including the extension, is blocked. Two federal courts have now barred the government from collecting the $100,000 H-1B fee, and the Northern District of California’s order expressly covers the September 2026 extension. Employers are not currently required to submit the $100,000 payment with new H-1B petitions.
• A similar fee could return through rulemaking. The California order bars enforcement only until agencies complete notice-and-comment rulemaking and the required small-business analysis. DHS’s separate, pending proposal for a $103,265 H-1B cap fee suggests that the administration may pursue a different path. The current proposal does not appear to impact “cap exempt” entities, but the rule language could change during the notice and comment process. 
• The legal landscape could change. The California litigation is far from over – the government has already appealed the preliminary injunction to the Ninth Circuit. Until the appellate courts weigh in, employers should treat the current reprieve as temporary. USCIS has indicated it intends to collect the fee retroactively if the fee is reinstated on appeal. 

The Burr & Forman immigration team is continuing to monitor the lawsuit and agency updates, including their impacts on future H-1B filings and beneficiaries.

This post was co-authored by Katie Applebaum, an associate in Burr & Forman's Bluffton office.