What’s Happening
On July 24, 2026, the U.S. Court of Appeals for the First Circuit denied the federal government’s request to stay a district court order vacating the policy that implemented the $100,000 H-1B payment requirement.
Background
As discussed in our prior alerts, the U.S. District Court for the District of Massachusetts ruled on June 8, 2026 that the actions taken by the U.S. Department of Homeland Security and the U.S. Department of State to implement the payment requirement under Presidential Proclamation 10973 were unlawful. The district court vacated the policy in its entirety.
On June 12, 2026, the district court later placed its ruling on a temporary administrative hold while the government sought emergency relief from 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. The First Circuit has now denied that request, allowing the district court’s vacatur to take effect while the government’s appeal continues.
What You Need to Know
The $100,000 payment requirement should no longer apply while the appeal is pending.
Because the First Circuit declined to keep the district court’s order on hold, USCIS should no longer assess the additional $100,000 payment under the vacated policy unless a later court order changes the current status.
The policy generally applied to H-1B petitions filed on behalf of individuals outside the United States, including petitions filed for consular notification and petitions that could only be approved for consular notification.
The First Circuit has not yet decided the government’s appeal.
The July 24 order concerns only the government’s request to keep the district court’s ruling from taking effect during the appeal. It is not a final decision on whether the district court correctly invalidated the policy.
In denying the stay, however, the First Circuit found that the government had not made the required strong showing that it was likely to succeed in challenging the district court’s conclusion that the agencies exceeded their statutory authority.
The court questioned whether Congress authorized a payment of this kind.
The government argued that the President’s authority under Sections 212(f) and 215(a) of the Immigration and Nationality Act permitted the $100,000 payment as a restriction on entry.
The First Circuit was not persuaded that those provisions clearly authorized such a payment. The court noted that neither statute refers to a fee or payment requirement and contrasted them with other immigration laws in which Congress expressly authorized fees and addressed how the funds would be collected or used.
USCIS guidance may take time to catch up with the ruling.
USCIS has not yet issued revised guidance or H-1B filing instructions reflecting the First Circuit’s decision. The agency’s published instructions and filing systems may not be updated immediately.
Employers preparing H-1B petitions that would previously have been subject to the payment requirement should speak with immigration counsel before filing, particularly where a petition is being filed for consular notification or may only be approvable for consular notification.
It remains unclear what will happen to payments already made.
The First Circuit’s order does not address whether employers that previously paid the $100,000 amount may obtain a refund, credit, or other relief. USCIS has not announced any reimbursement process.
Employers that submitted the payment should preserve their payment confirmations, receipt notices, filing records, and related correspondence while awaiting further guidance.
What This Means
The immediate effect of the First Circuit’s ruling is that the district court’s order vacating the $100,000 H-1B payment policy should now take effect. Unless another court intervenes, USCIS should no longer require the additional payment on petitions that were previously covered by the policy.
This is welcome news for employers that delayed affected filings, reconsidered overseas hiring plans, or set aside funds for the additional payment. Employers may now revisit H-1B cases that were placed on hold while the government’s request for a stay remained pending.
USCIS is expected to update its guidance and H-1B petition filing instructions to reflect the court’s ruling. Because those changes may not appear immediately, employers planning to file affected petitions should confirm the filing approach with immigration counsel before proceeding. This is particularly important for petitions filed for consular notification or petitions that may only be approved for consular notification.
The government’s appeal has not ended, and the First Circuit has not yet issued a final decision on the legality of the policy. Employers should therefore remain mindful that the situation could change again as the appeal moves forward.
What to Expect Next
Updated USCIS Filing Guidance
USCIS is expected to issue updated instructions explaining how affected H-1B petitions should be filed following the First Circuit’s decision. That guidance may address new filings, pending petitions, and any necessary changes to existing payment procedures. The agency may also provide information about payments already submitted, although no refund or reimbursement process has been announced.
Continued Appeal
The government is expected to continue its appeal of the district court’s June 8 decision. The First Circuit’s July 24 order denied the government’s request for interim relief but did not decide the merits of the appeal.
Other Pending Challenges
Additional lawsuits challenging the $100,000 payment requirement remain pending in federal court and could result in further rulings. Depending on how the appeal develops, the litigation could also continue through further appellate review.
Stay Tuned: This Is a Breaking Alert
D&S will continue monitoring the First Circuit appeal, USCIS filing guidance, and the other pending challenges to the $100,000 H-1B payment requirement. We will provide further updates as developments occur.
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.