What's Happening
Since our June 8 Alert and June 15 Update, the litigation surrounding the $100,000 H-1B fee has continued to quickly evolve.
As we previously discussed, the U.S. District Court for the District of Massachusetts temporarily stayed its June 8 order vacating the fee requirement and gave the government until June 18, 2026 to seek further relief from the U.S. Court of Appeals for the First Circuit.
On June 18, 2026, the government timely filed an emergency request asking the First Circuit Court of Appeals to pause the lower court’s ruling while the appeal moves forward. As a result, the temporary pause stays in place while the appeals court reviews the request, meaning that the $100,000 H-1B fee remains in effect for now while the First Circuit considers whether the pause should be extended while the appeals process plays out.
What You Need to Know
First, the U.S. government argues that the district court incorrectly concluded that the $100,000 payment constitutes an unlawful tax.
According to the U.S. government, the fee is a lawful condition on the admission of certain foreign workers and falls within the President's authority under existing immigration laws. The U.S. government further argues that the payment is not a tax at all, but rather a lawful restriction on admission.
Second, the U.S. government argues that much of the district court's reasoning depends on its conclusion that the fee is an unlawful tax.
As a result, the U.S. government believes the June 8 decision should be reversed in its entirety and has asked the First Circuit to keep the fee requirement in place while the appeal proceeds.
Third, the U.S. government argues that allowing the district court's ruling to take effect during the appeal would undermine the objectives underlying President Trump's Proclamation 10973 signed on September 19, 2025.
According to the U.S. government, the fee requirement was intended to address concerns regarding abuse of the H-1B program, wage suppression, displacement of U.S. workers, and broader economic and national security concerns. It is further argued that continued enforcement of the fee is necessary while the appeal remains pending.
Finally, the First Circuit has not yet ruled on the government's request. The court's forthcoming decision will likely determine whether the fee remains in effect while the legality of the fee continues to be litigated.
What this Means
Practically speaking, employers should continue to assume that the $100,000 H-1B fee remains in effect unless and until a court says otherwise.
The government’s June 18 filing preserves the current status quo while the appeals process moves forward. However, the legal status of the fee remains unsettled.
The First Circuit has not yet ruled on the government’s request to reinstate the $100,000 fee while the underlying appeal remains pending, and related litigation continues in other jurisdictions.
Employers with pending or anticipated H-1B filings should continue coordinating closely with immigration counsel regarding filing strategies, timing considerations, and contingency planning as the litigation proceeds.
What to Expect Next
First Circuit Decision
The First Circuit is expected to consider the government's request to reinstate the fee pending appeal in the coming days or weeks. Its decision will likely determine whether the fee remains in effect while the legality of the fee makes its way through the courts.
Parallel Litigation Continues
As discussed in our original June 8 Alert, the Massachusetts litigation is not the only challenge to the $100,000 fee requirement. Related litigation remains pending in other jurisdictions, including the Northern District of California. Additional rulings affecting the fee remain possible as these cases proceed.
Rapidly Changing Landscape
As we noted in our prior alerts, the legal status of the $100,000 H-1B fee may continue to change quickly through litigation, agency guidance, or additional executive action. Employers should refrain from making major hiring or workforce decisions based solely on the assumption that the current status quo will remain in place.
Stay Tuned: This Is a Breaking Alert
Please note that this update reflects the status of the litigation as of June 22, 2026. Information and guidance may change quickly as appellate proceedings continue and USCIS responds to evolving court orders. We will monitor developments closely and update our recommendations as new information becomes available.
This alert is for general informational purposes only and does not constitute legal advice. Please consult D&S immigration counsel regarding your specific circumstances. D&S Senior Associate, Paulina Baginska, assisted with the preparation of this alert.