What’s Happening
On September 18, 2026, the President extended the $100,000 H-1B fee for another year, through September 2027. The good news for employers is that the fee remains blocked by the courts, so it still can’t be enforced.
Earlier this year, a federal court ruled that the $100,000 fee was unlawful and stopped the government from collecting it. The government asked a higher court to put that ruling on hold while it appeals, and that request was denied. This means the court’s decision is still in effect.
The new extension keeps the fee policy alive on paper, but it does not appear to override the court’s ruling. As a result, employers are not currently required to pay the $100,000 fee when filing H-1B petitions. Below, we explain what this means for your hiring plans and what to watch for in the months ahead.
What the New Proclamation Does
The September 18 proclamation largely continues the framework established by the September 2025 proclamation under which certain H-1B petitions filed with a request for Consular Notification are subject to a $100,000 fee.
The proclamation continues to permit petitioners to request exceptions where the government determines that the H-1B employment is in the national interest and does not pose a threat to the security or welfare of the United States.
The Critical Point: The $100k Fee Remains Blocked For Now
Although the current Administration has now extended the proclamation through September 2027, the existing court order vacating implementation of the $100,000 payment policy remains in effect.
The June 8 district court decision vacated the government’s implementation of the payment requirement. After a temporary administrative hold, the First Circuit on July 24 declined to stay the district court’s decision while the government pursues its appeal. The First Circuit has not yet decided the merits of that appeal.
The September 18 proclamation does not establish an entirely new payment program. Rather, it expressly extends the 2025 Proclamation for an additional 12 months and continues the limitations established by Proclamation 10973.
Accordingly, there should be no immediate change to the status quo: USCIS remains barred from collecting the $100,000 payment while the district court’s vacatur remains in effect and litigation remains ongoing.
Could the Government Attempt to Enforce the Extended Proclamation?
This remains an important area to watch. Since the September 18 action extends the prior proclamation rather than replacing it with a new payment framework, the existing court order should continue to prevent USCIS from collecting the $100,000 payment. However, it remains possible that the government could take the position that some aspect of the newly extended proclamation falls outside the scope of the existing judgment. If that occurs, further litigation and requests for judicial clarification are likely.
What This Means for Employers
For now, employers should not assume that the September 18 proclamation reinstates the $100,000 payment requirement. The court order vacating implementation of the payment policy remains in effect, and the proclamation’s extension should remain subject to that order.
Employers should remain mindful of the evolving legal landscape when filing H-1B petitions that would previously have fallen within the scope of the $100,000 payment requirement, including petitions filed for consular notification or petitions that may only be approvable for consular notification. USCIS has continued adjudicating at least some affected petitions, including reports of approvals without payment of the $100,000 fee, particularly in non-cap cases. However, adjudication practices have not been consistent even with non-cap cases, and the government’s appeal remains pending. Employers should therefore continue to assess filing strategy on a case-by-case basis for consular notification and monitor for further agency guidance or court action.
What to Expect Next
First Circuit Appeal: The government’s appeal of the June 8 district court decision remains pending. A merits decision could determine whether the government may resume implementation of the $100,000 payment requirement under the extended proclamation.
Separate Proposed H-1B Fee: Separately, USCIS has proposed a regulation that would impose a fee of $103,265 on cap-subject H-1B petitions. This is distinct from the $100,000 payment requirement established through the presidential proclamation and is proceeding through a separate regulatory process. If the proposed rule is finalized and the proclamation-based payment requirement is later reinstated through further court action, certain H-1B filings could potentially be subject to both requirements.
Agency Guidance: USCIS, the Department of State, or other agencies may issue guidance addressing the September 18 extension and its interaction with the existing court order. Any attempt to resume collection of the payment would be a significant development.
Potential Further Litigation: If the government takes the position that the September 18 extension permits implementation notwithstanding the existing vacatur, additional litigation or requests for clarification from the courts are likely.
Stay Tuned: This Is a Developing Issue
D&S will continue monitoring the First Circuit appeal, agency guidance, and implementation of the September 18 proclamation. For now, the key takeaway is that although the Administration has extended the $100,000 H-1B proclamation through September 21, 2027, the court order preventing enforcement of the payment requirement remains in effect.
D&S will continue to 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.