$100,000 H-1B Fee Update: Court Temporarily Reinstates Fee Pending Appeal
Overview
Today, the same Massachusetts district court that vacated the $100,000 H-1B fee on June 8th temporarily paused its own ruling, allowing the fee to be collected again while the appeals process proceeds. The pause will remain in place until the First Circuit Court of Appeals rules on the government’s anticipated request for a formal stay. The government has until June 18th to file that request. If it misses that deadline, the June 8th vacate order will be reinstated automatically.
Background
On June 8th, the Massachusetts district court vacated the $100,000 H-1B fee on the grounds that it constitutes a tax requiring congressional authorization and was not implemented through proper rulemaking under the APA. That ruling applied nationally. On June 12th, the government filed a formal appeal of that decision, and the district court simultaneously issued today’s temporary pause of its own vacate order to allow the First Circuit to weigh in on whether the fee should remain suspended during the appeals process.
What Happens Next
The government must file its stay request with the First Circuit by June 18th. The First Circuit’s decision on that request will determine whether the USCIS can continue collecting the $100,000 fee while the broader appeal proceeds. Given the pace of developments, the status of the fee could change quickly and with little notice.
What This Means for Our Clients
As a result of today's ruling, the USCIS is authorized to collect the $100,000 fee on certain H-1B petitions, including petitions filed for beneficiaries who are outside the United States and petitions filed for beneficiaries in the United States whom the USCIS determines to be in violation of their nonimmigrant status.
The district court's decision to stay its ruling is particularly problematic given the June 30th deadline for filing H-1B cap-subject petitions. If the court of appeals grants the government's request for a stay pending appeal, employers may be unable to file cap-subject petitions requesting consular notification before the filing deadline.
Under that scenario, employers could choose to file cap-subject petitions without the disputed fee in the hope that the court of appeals ultimately affirms the district court's decision on the merits. However, doing so carries significant risk, as the USCIS could reject or deny the petition for failure to include the required fee before the court of appeals issues a favorable ruling.
We are actively reaching out to clients we believe may be impacted by these shifting dynamics. Our team is monitoring developments closely and will provide updates as the situation evolves. Please contact our office with any questions about how this ruling may affect your pending or planned H-1B filings.