U.S. immigration policy has changed rapidly over the past year, but few measures have created as much immediate uncertainty as the Trump administration’s $100,000 H-1B payment requirement.
Since the fee was introduced in 2025, it has been challenged in several federal courts, upheld by one judge, struck down by another, temporarily revived, and then blocked again. Employers and foreign professionals have had to make important immigration and hiring decisions while the legal status of the fee continued to change.
Previously, a federal district court had struck down the government’s implementation of the fee. However, the judge temporarily paused that ruling while the government sought emergency relief from the U.S. Court of Appeals for the First Circuit. At that point, USCIS could continue requiring the payment for affected H-1B petitions.
That is no longer the case.
On July 24, 2026, the First Circuit rejected the government’s request to keep the fee in effect while its appeal proceeds. USCIS subsequently confirmed that it would comply with the ruling and stop collecting the additional payment.
The $100,000 H-1B fee is therefore blocked again. As of August 3, 2026, the implementing policy is vacated and USCIS is complying with the court orders. However, the government’s appeal remains active, and the legal dispute is not over.
In this post, we’ll examine these developments in greater detail and explore how a Green Card through EB-5 can be a much more stable option for H -1B workers looking to stay in the U.S. permanently.
The Trump Administration’s $100,000 H-1B Fee
A Federal Court Struck Down the Fee
The Fee Was Temporarily Revived During the Appeal
The First Circuit Refused to Keep the Fee in Effect
USCIS Is No Longer Collecting the Additional Payment
The First Circuit Has Not Issued a Final Decision on the Appeal
The Fee Is Gone for Now, but the H-1B Uncertainty Remains
EB-5 Offers a Separate Path to Permanent Residence
H-1B Workers May Be Able to Pursue EB-5 Without Giving Up Their Current Status
Concurrent Filing Can Reduce Dependence on an H-1B Employer
H-1B Workers Should Evaluate EB-5 Based on Their Own Circumstances
Next Steps for H-1B Workers
The Trump Administration’s $100,000 H-1B Fee
On September 19, 2025, President Trump issued a presidential proclamation imposing a $100,000 payment requirement in connection with certain H-1B petitions.
The proclamation primarily targeted petitions for foreign professionals who were outside the United States or whose petitions required consular processing. It instructed the Department of Homeland Security to restrict decisions on covered petitions that were not accompanied by the payment. It also directed the State Department to limit visa processing and entry for affected H-1B workers whose employers had not paid the required amount.
The proclamation permitted discretionary national-interest exceptions for particular workers, companies, or industries. It took effect on September 21, 2025, and was scheduled to remain in place for 12 months, through September 21, 2026, unless extended.
The payment was far higher than the ordinary government filing fees associated with an H-1B petition. Its practical effect was to make sponsorship of some foreign professionals significantly more expensive, particularly for smaller employers, schools, universities, hospitals, and other organizations that could not easily absorb a six-figure charge for each affected worker.
The administration argued that the measure was necessary to prevent abuse of the H-1B program and protect U.S. workers. Opponents argued that the president and immigration agencies could not impose such a substantial financial charge without clear authorization from Congress.
Those competing positions led to several lawsuits.
A Federal Court Struck Down the Fee
The lawsuit that produced the current nationwide result is State of California v. Mullin. Twenty states challenged the actions taken by the Department of Homeland Security and the State Department to implement and collect the $100,000 payment.
The states argued that the fee would make it substantially harder for public universities, schools, healthcare systems, and other public institutions to recruit qualified professionals. They also argued that the executive branch had exceeded the authority granted to it by Congress.
On June 8, 2026, Judge Leo Sorokin of the U.S. District Court for the District of Massachusetts ruled in favor of the states. He declared the agencies’ implementation of the payment requirement unlawful and vacated the policy in its entirety.
The court held that the payment operated as a tax imposed without the required congressional delegation. It also held that the agencies issued a legislative rule without notice and comment, exceeded their statutory authority, and acted arbitrarily and capriciously, in violation of the Administrative Procedure Act.
The court vacated the actions that DHS and the State Department had taken to implement and enforce the $100,000 payment.
Without those implementing actions, the agencies could not continue collecting the fee.
The Fee Was Temporarily Revived During the Appeal
The federal government appealed the June 8 decision to the First Circuit and asked the district court to keep the payment requirement in force while the appeal proceeded.
Judge Sorokin declined to grant a full stay pending appeal. However, on June 12, he issued a narrower administrative stay to give the First Circuit time to consider the government’s emergency request.
That temporary order paused the practical effect of the June 8 ruling. USCIS could therefore continue requiring the $100,000 payment while the First Circuit decided whether to grant the government a longer stay.
The next decision would determine whether the fee remained in place throughout the appeal or whether the district court’s order would take effect again.
The First Circuit Refused to Keep the Fee in Effect
On July 24, a three-judge panel of the First Circuit denied the government’s motion for a stay pending appeal.
To obtain a stay, the government needed to make a strong showing that it was likely to succeed on the merits of its appeal. The First Circuit concluded that the government had not met that standard.
The government argued that Sections 212(f) and 215(a) of the Immigration and Nationality Act give the president broad authority to restrict the entry of foreign nationals. According to the government, that authority was broad enough to permit a $100,000 payment as a condition of H-1B entry.
The First Circuit was not persuaded.
The court noted that Congress has expressly authorized immigration fees in other parts of the Immigration and Nationality Act. In those provisions, Congress specifically states that a fee may be collected and often explains how the money should be used.
The statutes relied upon by the administration contain no similar language authorizing a six-figure payment. They allow the president to restrict entry, but they do not expressly authorize the executive branch to impose this type of financial charge.
The court also noted that the government did not dispute that these presidential entry provisions had never previously been used to impose a comparable fee. Based on the statutory language and Congress’s established practice of expressly authorizing immigration fees, the First Circuit found that the government had not shown that it was likely to prevail.
The court therefore denied the government’s request to keep the fee in effect. Because the district court’s administrative stay had been entered only while the First Circuit considered that request, the temporary pause ended and the June 8 order became operative again.
USCIS Is No Longer Collecting the Additional Payment
Following the First Circuit’s ruling, USCIS updated its H-1B materials and confirmed that it would comply with the court orders.
The agency is no longer collecting the additional $100,000 payment for H-1B petitions. Employers may proceed under the ordinary H-1B filing requirements and fee schedule without including the extraordinary payment.
The First Circuit Has Not Issued a Final Decision on the Appeal
The July 24 ruling did not finally resolve the entire case.
The government’s merits appeal remains active. Briefing and further proceedings will continue, and the government could also seek reconsideration, review by the full First Circuit, or emergency relief from the U.S. Supreme Court.
Still, the July 24 order is significant. To obtain a stay, the government needed to show a strong likelihood of success. The First Circuit’s detailed rejection of the government’s statutory arguments indicates that the panel has substantial concerns about the legal basis for the fee.
The proclamation is also scheduled to expire on September 21, 2026, unless the administration extends it. An extension would not automatically resolve the legal problems identified by the courts. The administration could also attempt to replace the policy or pursue a different regulatory approach, which could lead to further litigation.
The Fee Is Gone for Now, but the H-1B Uncertainty Remains
The latest ruling provides immediate relief to employers and foreign professionals affected by the payment requirement. A company considering an H-1B petition no longer faces an additional $100,000 charge under the current policy.
However, the events of the past several months show how quickly the conditions surrounding a temporary employment visa can change.
The H-1B category remains dependent on employer sponsorship. A worker’s ability to maintain H-1B status is generally connected to continued qualifying employment with a sponsoring company. Job losses, changes of employer, government policy changes, and new filing requirements can all affect the worker’s ability to remain and work in the United States.
Cap-subject applicants must also obtain selection through the annual H-1B registration process before an employer can file a petition. Even after a worker obtains H-1B status, the visa remains temporary and does not by itself provide permanent residence.
For foreign professionals making long-term decisions about their careers, families, and lives in the United States, the current absence of the fee does not eliminate the broader uncertainty associated with employer-dependent status.
EB-5 Offers a Separate Path to Permanent Residence
For families with the financial ability to make a qualifying investment, the EB-5 Immigrant Investor Program offers a fundamentally different immigration strategy.
The H-1B is a temporary nonimmigrant visa based on employment. EB-5 is an immigrant visa category designed to lead directly to lawful permanent residence.
An EB-5 investor does not need a U.S. employer to file or maintain the immigrant petition. The investor’s immigration case is based on the qualifying investment, lawful source of funds, and creation of at least 10 jobs for U.S. workers—not on continued employment with a sponsoring company.
This distinction gives EB-5 investors considerably more control over their long-term immigration plans. They may change employers, change careers, start a business, study, retire, or relocate within the United States without placing their EB-5 petition at risk merely because their employment situation changed.
Our detailed comparison of the H-1B and EB-5 programs explains the differences between temporary employer sponsorship and an independent immigrant petition.
Additional EB-5 benefits include permanent-residence eligibility for the investor, the investor’s spouse and qualifying unmarried children under age 21.
For qualifying applicants, EB-5 offers something the H-1B cannot provide on its own: an immigration process that does not depend on an employer’s willingness or ability to continue sponsorship.
H-1B Workers May Be Able to Pursue EB-5 Without Giving Up Their Current Status
H-1B is a dual-intent category. An H-1B worker may generally pursue permanent residence while continuing to maintain H-1B status.
The EB-5 process is separate from the employer’s H-1B petition. Many H-1B workers begin an EB-5 case while continuing to work for their sponsoring employer. They can maintain their existing status while the EB-5 petition proceeds and transition away from H-1B dependence when they receive their USCIS approvals.
Because the EB-5 petition is independent of the employer, workers generally do not need their employer to sponsor, approve, or participate in the case.
H-1B workers should nevertheless continue complying with the requirements of their existing status until they obtain separate authorization to remain and work in the United States.
Concurrent Filing Can Reduce Dependence on an H-1B Employer
Some EB-5 investors who are already lawfully present in the United States may be eligible to file Form I-485 for adjustment of status at the same time as Form I-526E. Concurrent filing is available only when the investor meets the adjustment requirements and an immigrant visa is available in the relevant EB-5 category.
Concurrent filing remains available, but adjustment of status is discretionary, and meeting the statutory filing requirements does not guarantee that USCIS will approve Form I-485.
Eligible investors may also apply for an Employment Authorization Document and an advance-parole travel document while their adjustment applications remain pending.
An EAD can allow the investor to work for a different employer or operate a business without relying exclusively on H-1B employment authorization. Eligible dependent family members may also apply for employment and travel authorization.
Concurrent filing does not immediately grant permanent residence, and each applicant must obtain individual legal advice before relying on an EAD or advance parole. Nevertheless, it can provide meaningful employment and travel flexibility during the Green Card process.
Our guide to EB-5 concurrent filing explains how the process works and why it can be particularly valuable for H-1B workers already living in the United States.
H-1B Workers Should Evaluate EB-5 Based on Their Own Circumstances
The First Circuit’s decision is favorable for employers and H-1B workers, but it does not provide a final or permanent resolution. The fee could return if the government obtains further judicial relief or ultimately wins the appeal. The administration could also attempt to introduce a revised policy.
H-1B workers should evaluate whether EB-5 fits their family’s long-term objectives, whether they can document a qualifying lawful source of funds, whether an immigrant visa is available, and whether they can identify an investment project with strong immigration and financial protections.
Additionally, Form I-526E petitions based on regional-center investments that are properly filed on or before September 30, 2026, receive statutory protection against a future lapse of the Regional Center Program. USCIS must continue processing those petitions and may not deny them solely because the program later expires.
Next Steps for H-1B Workers
The legal fight around the H-1B fee continues. The government’s appeal remains pending, and further court action could alter the result.
For H-1B workers, this dispute illustrates the uncertainty that can accompany temporary immigration status tied to an employer,. For qualifying families seeking greater control over their long-term plans, EB-5 provides a separate path toward permanent residence without depending on employer sponsorship.
H-1B workers and their families can schedule a free consultation with EB5AN to discuss EB-5 eligibility, source-of-funds planning, concurrent filing, and currently available investment opportunities.
Prospective investors should also keep the September 30, 2026, deadline in mind. Form I-526E petitions based on regional-center investments that are properly filed by that date receive statutory protection against a future lapse of the Regional Center Program. With the deadline approaching, families considering EB-5 should begin evaluating their eligibility, preparing source-of-funds documentation, and conducting project due diligence as soon as possible.