Fee is Currently Not in Effect 

On July 24th, the U.S. Court of Appeals for the First Circuit lifted a temporary stay that had temporarily allowed DHS to continue to require payment of the $100,000 H-1B fee. As previously reported, a district court in  Massachusetts vacated the policy requiring a $100,000 payment for certain  H-1B petitions, finding that it was an unconstitutional tax. While the government’s appeal of that decision was pending, a temporary stay allowed the fee to remain in effect. With the court formally denying the Government’s stay request, the $100,000 fee requirement will not be in effect while the litigation continues. 

Below, we summarize the decision and outline recommended next steps. 

Key Takeaways from the Ruling 

• The Fee Is Currently Not in Effect: With the temporary stay lifted, the district court’s ruling vacating the $100,000 payment requirement stands. DHS and DOS cannot condition H-1B decisions on the payment while the case proceeds. 

• This Is Not a Final Decision: The First Circuit’s ruling only addressed whether to pause the lower court’s decision during the appeal; it did not decide the case on its merits. The government’s appeal is still pending, and the underlying legal fight over the fee’s validity continues. 

• Important Signal: Nevertheless, in declining to pause the lower court’s ruling, the appeals court found that the government had not shown it is likely to succeed on the merits of its appeal. That is a significant, if preliminary, signal about how the court views the government’s legal arguments to date, though it is not the final word. 

• Supreme Court Review Possible: The government may seek emergency relief from the U.S. Supreme Court to reinstate the fee while the appeal continues. Employers should be prepared for the possibility that the Supreme Court could reimpose the fee on short notice. 

Recommended Next Steps 

Employers can now file all H-1B petitions, including those that had been subject to the fee, without the $100,000 payment. Given the possibility of Supreme Court intervention, employers with either pending or planned H-1B filings that would be subject to the fee, or with potentially fee subject employees requiring a new H-1B visa stamp, should consider filing while the litigation is pending.  

We will provide updates on the status of the fee as additional information becomes available. 

Please contact your Meltzer Hellrung professional if you have questions about how this ruling affects a pending or upcoming H-1B matter, or if you would like assistance with contingency planning while the litigation continues.