$100,000 H-1B Fee Remains Blocked as Government Appeal Continues
- ARCFE U.S.
- Jul 28
- 4 min read
On July 24, 2026, the U.S. Court of Appeals for the First Circuit denied the federal government’s request to keep the $100,000 H-1B payment requirement in effect while its appeal continues.
The decision allows a lower court judgment vacating the controversial policy to take effect. Under the current court posture, USCIS should not require the $100,000 payment for H-1B petitions previously covered by the policy unless a later order changes the situation.
For affected employers and foreign professionals, the ruling provides immediate relief. But the case is not over—and the uncertainty surrounding H-1B planning has not disappeared.
What Did the Appeals Court Decide?
The $100,000 H-1B payment requirement originated from a September 2025 presidential proclamation. It applied primarily to certain new H-1B petitions involving beneficiaries outside the United States or cases requesting consular processing.
A coalition of 20 states challenged the policy, arguing that the executive branch lacked clear congressional authority to impose a payment of this magnitude.
On June 8, 2026, the U.S. District Court for the District of Massachusetts agreed. In its memorandum and order, the court concluded that the agencies’ implementation of the payment requirement exceeded their lawful authority and violated the Administrative Procedure Act. The court vacated the policy in its entirety.
The federal government then asked the First Circuit to keep the payment requirement in place during the appeal. In its July 24 order, the appeals court denied that request, finding that the government had not made the required showing that it was likely to prevail.
Importantly, the First Circuit did not issue a final ruling on the underlying appeal. It decided only that the $100,000 H-1B fee should not remain in effect while the appeal proceeds.
What Does the H-1B Fee Ruling Mean Now?
For the time being, employers should not be required to submit the $100,000 payment under the vacated policy.
However, agency websites and filing instructions may take time to reflect a new court order. Employers preparing H-1B petitions that would previously have been subject to the payment—particularly petitions involving beneficiaries outside the United States or consular notification—should review the latest USCIS H-1B guidance and confirm filing requirements with qualified immigration counsel immediately before submission.
Questions also remain for employers that have already paid the $100,000 amount. USCIS has not announced a uniform refund procedure, so employers should retain payment confirmations, petition records and USCIS receipt notices while awaiting further guidance.
The government may continue the appeal or seek additional emergency relief. A later court order could therefore change the filing position again.
One Favorable Ruling Does Not Eliminate H-1B Uncertainty
Blocking the $100,000 H-1B fee removes a potentially substantial cost for certain employers. It does not remove the broader limitations of a temporary employment-based status.
H-1B professionals may still depend on continued qualifying employment and employer sponsorship. Job loss, a change of employer, corporate restructuring or another policy shift can quickly affect a family’s ability to work and remain in the United States.
For professionals planning a long-term future in the U.S., relying entirely on one employer and one temporary visa category can leave limited room to respond when circumstances change.
The takeaway is not that H-1B is no longer valuable. It is that long-term immigration planning is usually easier before a job change, status deadline or policy disruption makes the decision urgent.
Where EB-5 May Fit Into Long-Term Immigration Planning
For qualified families with appropriate financial resources, the EB-5 Immigrant Investor Program may provide a separate path toward permanent residence that does not depend on the H-1B selection process or continued sponsorship from a particular employer.
Certain eligible investors already in the United States may also be able to file Form I-526E together with Form I-485 when an immigrant visa is available. They may additionally apply for employment authorization and advance parole while the adjustment application is pending.
ARCFE’s guide to EB-5 concurrent filing explains how I-526E, I-485, employment authorization and advance parole may work together for eligible U.S.-based applicants.
According to the U.S. Department of State’s August 2026 Visa Bulletin, the EB-5 high-unemployment, rural and infrastructure set-aside categories remain “Current” for all chargeability areas. Eligible investors may therefore still benefit from the current post-reform visa availability framework.
However, “Current” describes present visa availability; it does not guarantee that the categories will remain current. Future demand, annual visa limits and government administration may result in changes.
EB-5 is also not an automatic or risk-free replacement for H-1B. Eligibility, lawful source of funds, immigration timing and project risk must be evaluated carefully. EB-5 capital must remain at risk, and neither immigration approval nor repayment of investment capital can be guaranteed.
The ARCFE Perspective: Plan Before Circumstances Become Urgent
The latest H-1B ruling demonstrates how quickly immigration rules can move between executive action, agency implementation and judicial review.
Foreign professionals do not need to abandon their current employment-based strategy. But families intending to remain in the United States may benefit from understanding their longer-term options while they still have time and flexibility.
Founded by New York real estate financing institution iCross Capital, ARCFE evaluates EB-5 opportunities with particular attention to project fundamentals, capital structure, collateral, job creation and repayment planning. Our goal is to help investors understand both the immigration pathway and the investment structure before making a decision.
If you are currently in H-1B, F-1/OPT, L-1 or another temporary status and would like to explore whether EB-5 may fit into your family’s long-term planning, you may contact the ARCFE team.
This article is provided for general informational purposes only and does not constitute legal, immigration, tax or investment advice. Court proceedings, agency guidance and visa availability may change. Readers should consult qualified professionals regarding their individual circumstances.
To learn more about the EB-5 Program, review the ARCFE EB-5 process, or request a confidential consultation with the ARCFE team.
Speak with our EB-5 specialist and learn how the program can help you achieve permanent residency. Complete the form and our team member will give you a call back.
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