Federal Appeals Court Declines to Stay Order Vacating $100,000 H-1B Payment Requirement

The U.S. Court of Appeals for the First Circuit denied the government’s motion to stay a district court order vacating the $100,000 H-1B payment requirement on July 24, 2026.

$100,000 H-1B Payment Requirement

On July 24, 2026, a three-judge panel of the U.S. Court of Appeals for the First Circuit denied the government’s motion to stay, pending appeal, a district court order that vacated federal agency actions implementing the $100,000 payment requirement for H-1B petitions.

The ruling leaves in place the June 8, 2026, order and judgment of the U.S. District Court for the District of Massachusetts, which vacated the implementing policy in its entirety.

Background

A presidential proclamation issued on September 19, 2025, directed the U.S. Department of Homeland Security (DHS) and the U.S. Department of State (DOS) to require a $100,000 payment with each H-1B petition. Agency guidance limited the requirement to petitions filed on or after September 21, 2025, for beneficiaries seeking entry from outside the U.S., or approvable only through consular notification. Petitions requesting a change of status or extension of stay for an individual already in the U.S. were not subject to the payment.

Twenty states filed suit on December 12, 2025, challenging the agencies’ ten implementing actions under the Administrative Procedure Act (APA) and as exceeding the executive branch’s constitutional authority. On June 8, 2026, the district court granted summary judgment to the states and vacated the policy under 5 U.S.C. § 706(2).

The district court declined to stay its judgment pending appeal but entered an administrative stay while the First Circuit considered the government’s emergency motion. That motion has now been denied.

The Court’s Reasoning

The panel applied the four-factor stay standard set out in Nken v. Holder and found the government had not made a strong showing that it was likely to succeed on the merits of its appeal.

The court focused on the states’ claim that the policy exceeded statutory authority, noting:

• Under Skinner v. Mid-America Pipeline Co., Congress must speak clearly when conferring discretionary authority to impose financial burdens on regulated parties.
• Neither 8 U.S.C. § 1182(f) nor § 1185(a) references a payment requirement of this kind.
• When Congress imposes or delegates fee authority under the Immigration and Nationality Act, it has done so explicitly and has specified how funds are collected and used.
• Neither provision has previously been used to impose a payment of this kind.

The panel also rejected the government’s argument that the implementing actions were not final agency action subject to APA review, observing that the position was difficult to reconcile with the government’s own claim of daily irreparable harm.

The order resolves the stay motion only. It does not decide the merits of the appeal.

Looking Ahead

With the stay denied, the district court’s vacatur takes effect, and U.S. Citizenship and Immigration Services (USCIS) should not assess the $100,000 payment on affected H-1B petitions. USCIS is expected to issue updated filing guidance, though the agency had not announced a timeline as of publication.

The court decisions to date do not address refunds for payments already submitted.

The government’s appeal remains pending, and further relief may be sought. A separate district court decision upholding the proclamation is on appeal before the U.S. Court of Appeals for the D.C. Circuit, and additional challenges remain pending in other federal courts.

Employers with H-1B petitions involving consular notification should monitor USCIS for updated filing instructions and retain documentation of any payments already made.

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