On July 24, 2026, the U.S. Court of Appeals for the First Circuit denied the government’s motion to stay the district court judgment that vacated the policy implementing the $100,000 H-1B fee. The administrative stay that reinstated the fee on June 12 is therefore lifted, and the vacatur stands while the government’s appeal proceeds.
The timing of the Proclamation’s expiration is also increasingly important. By its terms, Proclamation 10973 imposes a temporary 12-month restriction that will expire on September 20, 2026, unless extended. With approximately six weeks remaining, the practical question for many employers is becoming more immediate: what exposure exists during the remaining period, and will the Administration extend, renew, or reissue the Proclamation, regardless of when the First Circuit ultimately rules?
What Happened: First Circuit Denied the $100,000 H-1B Fee Stay
On June 8, 2026, the U.S. District Court for the District of Massachusetts vacated the agency policy implementing Proclamation 10973 on four independent grounds, as covered in our June 9 alert. On June 12, Judge Leo Sorokin administratively stayed his own ruling, which put the $100,000 H-1B fee back in force while the government sought emergency relief. The First Circuit has now denied that relief.
The court held the government had not shown it was likely to win on appeal, as required under the standard from Nken v. Holder. The court confined its analysis to a single ground, that the agencies acted in excess of statutory authority, because that ground alone fully supports the relief the government wanted stayed. Reading Skinner v. Mid-America Pipeline Co., the court held Congress must clearly authorize such a burden before the executive branch may impose a financial burden of this sort, whether labeled a fee or a tax, and framed the question as whether Congress in fact did so rather than whether it could. The two provisions the Proclamation relied on, 8 U.S.C. §§ 1182(f) and 1185(a), do not mention a payment requirement, and the government did not dispute that neither provision has ever been used to impose a payment of this kind.
What This Means for Employers Facing the $100,000 H-1B Fee
The timeline has changed since our June alerts and so has what matters practically. The FY2027 cap filing deadline passed on June 30, 2026, and USCIS announced the cap was reached with no second lottery. The three-week filing scramble that drove the June guidance is over. What remains live is cap-exempt filings, petitions requesting consular notification, sponsored employees who are currently outside the United States, and international travel decisions.
Against that, weigh the September 20, 2026, expiration. Because the fee has been vacated, it cannot be collected now, and the Proclamation lapses in about six weeks on its current terms. For petitions that can be filed and adjudicated inside that window, exposure is limited even if the government later obtains a stay. For anything with a longer runway, the risk is real and should be priced in.
Three exposures deserve attention.
Refunds Remain Unresolved
The June 8 judgment vacated the implementing policy but did not address refund mechanics. As we noted in June, in the tariff litigation following the Supreme Court’s Learning Resources decision the Administration declined to issue refunds until ordered to. Employers who paid the $100,000 H-1B fee should retain complete payment records and speak with counsel about whether to pursue recovery.
Proclamation 10973 Was Not Vacated
What the courts set aside is the agency policy implementing the Proclamation, which is the only thing the states asked to have vacated and the only thing the Administrative Procedure Act (APA) reaches. The judgment does not declare the Proclamation void, and no injunction was entered against giving effect to it. The First Circuit ruled based on a lack of legal authority rather than on a procedural mistake, so a renewed implementation would need a different statutory footing. That is a meaningful constraint, but it is not the same as the Proclamation being off the table, and it says nothing about whether the Administration extends the restriction past September 20 or issues a new one.
The Litigation is Not Over
The merits appeal remains pending before the First Circuit, and the government may seek a stay from the Supreme Court. Parallel challenges remain pending in the Northern District of California and before the D.C. Circuit. The posture has reversed three times in the past two months.
What This Means for Sponsored Employees
For foreign nationals whose petitions were held back or restructured because of the cost, the immediate obstacle is removed while the vacatur stands.
Travel is where the risk concentrates. The payment requirement applied to beneficiaries entering from abroad, not to change of status filings for people already in the United States. If the government obtains a stay from the Supreme Court while an employee is outside the country, that employee’s reentry is what triggers exposure. Employees with pending or planned international travel should coordinate with counsel and their employer before departing and should weigh whether a trip can wait until the posture is clearer or until the Proclamation lapses.
The $100,000 H-1B fee has been in force, vacated, reinstated, and vacated again since September 2025, and the Proclamation’s expiration date adds a second variable to an already unsettled picture. Klasko Immigration Law Partners is monitoring the appeal, any emergency application to the Supreme Court, and whether the Administration acts before September 20, 2026. Please reach out to your Klasko attorney for specific guidance on how this update to the H-1B $100,000 fee may affect you or your organization.
The material contained in this post does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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