USCIS has started approving H-1B petitions that would have been subject to the $100,000 fee, even though the employers never paid it. For weeks, many of these petitions sat untouched, well past the 15-business-day premium processing deadline. Now approvals are coming through.
This is a meaningful development for employers who filed in reliance on the federal court orders blocking the fee. It is not the end of the story. Here is what happened, what the approvals mean, and what employers should do next.
How we got here
The September 2025 presidential proclamation imposed a $100,000 payment on certain new H-1B petitions, chiefly those for workers outside the United States. On September 18, 2026, the President extended it through September 21, 2027.
Two federal courts have blocked the fee:
- District of Massachusetts. The court vacated the fee in June 2026. In July, the First Circuit denied the government’s request to stay that ruling while the appeal proceeds.
- Northern District of California. At the end of September 2026, the court barred enforcement of the fee, including under the September 2026 extension. The government has appealed to the Ninth Circuit.
USCIS has said it is complying with the orders, but that it will collect the fee if the orders are lifted. The appeals remain pending.
The stall at the USCIS
Employers filed H-1B petitions without the fee, relying on those orders. At all service centers, cases stalled. Premium processing guarantees action within 15 business days, yet our clients’ petitions passed that window without a decision.
So we organized a multi-company mandamus action to compel USCIS to adjudicate. Joining several employers in one suit kept costs down for each of them.
After our publicity, the logjam is breaking, without filing an actual suit.
Approvals are uneven. Not every stalled petition is moving at the same pace. A petition still sitting past its premium processing deadline may need direct action.
For recruiters: look abroad, especially at candidates with valid H-1B stamps
Since the fee took effect, many recruiters have screened out candidates outside the United States. Those were the petitions most exposed to the $100,000 payment. With petitions now being approved without the fee, that reflex deserves a second look.
The fastest hires may be candidates abroad who already hold a valid, unexpired H-1B visa stamp in their passport. Here is why:
- No new consular interview, in many cases. A worker with a valid H-1B visa stamp can generally travel on that visa with the new employer’s approval notice. That can skip months of waiting for a consular appointment.
- No new lottery. A candidate previously counted against the H-1B cap, with time left on the six-year limit, can usually be petitioned for without a new cap selection.
- A deeper talent pool. Many qualified H-1B workers left the U.S. after a layoff or a lapse in status. Others are working abroad for multinationals. Many are ready to return.
A few cautions:
- The worker cannot start until the petition is approved. H-1B portability is not available to someone outside the U.S. Employers may be able to hire the individual as a contractor or through an EOR abroad while waiting for the individual to enter the US.
- Confirm the visa stamp is unexpired and that the candidate has no status issues from a prior stay.
Talk with your Meltzer Hellrung attorney before extending an offer. A short review of the candidate’s visa and H-1B history can tell you how fast that person can realistically arrive.
What employers should do now
- Check every pending fee-subject petition. If it was filed with premium processing and is past 15 business days with no action, it may need a push.
- Act on approvals quickly. Schedule visa appointments or travel promptly while the court orders remain in place.
- Revisit hiring plans for candidates abroad. Talent you set aside because of the fee may now be within reach.
