Where the litigation stands now

On July 24, 2026, the U.S. Court of Appeals for the First Circuit denied the federal government’s motion to stay a June 8, 2026 district court order that had vacated the agency actions implementing the $100,000 H-1B fee. The case, State of California v. Mullin, No. 26-1699 (1st Cir.), was brought by a coalition of 20 states challenging the fee created by the September 19, 2025 presidential proclamation. With the stay denied, the district court’s vacatur is back in full force nationwide, and USCIS cannot currently enforce the $100,000 payment requirement for covered H-1B petitions.

This is the third status change for the fee in seven weeks. The district court vacated it on June 8, concluding the fee functioned as an unlawful tax that exceeded the agencies’ statutory authority under the Administrative Procedure Act. The same court then temporarily stayed its own order on June 12 while the government sought emergency relief, putting the fee back into effect. Our earlier analysis covered that middle chapter, when the fee was, as of publication, back in effect pending the First Circuit’s review. The July 24 order resolved that emergency request, and it went against the government.

“The fee has now flipped status three times in seven weeks, and each flip has come from an actual ruling, not background noise: vacated on June 8, reinstated by a stay on June 12, vacated again on July 24.”

Why the First Circuit declined to intervene

A stay pending appeal is not a ruling on the merits. To get one, the government had to show, among other things, a strong likelihood of success on the underlying legal question, and the panel found it hadn’t done so, specifically on whether the Immigration and Nationality Act grants the executive branch authority to impose a $100,000 per-petition fee by proclamation without express congressional authorization. That is the same core defect the district court identified in June: the fee looks, functionally, like a tax, and taxation is a power the Constitution assigns to Congress, not to unilateral executive action layered onto immigration proclamation authority.

The practical result is that the district court’s June 8 vacatur governs while the appeal proceeds. DHS has stated it “strongly disagrees” with the First Circuit’s order but will comply with it. That compliance is not optional, and it is not itself under appeal; only the underlying merits question, whether the fee was lawfully imposed in the first place, remains open.

What happens next

The merits appeal at the First Circuit is still pending, and appellate review on a case of this complexity typically runs months, not weeks. If the government loses there, a petition for Supreme Court review is widely expected, since the fee’s fate turns on the outer bounds of executive authority under the INA, exactly the kind of question the Court is more likely to take. A final, binding resolution is unlikely before 2027. Until then, the fee’s status can change again, and each change so far has come with limited advance notice.

Where things stand for employers

Filing while the vacatur is in effect

  • As of this writing, the $100,000 fee should not apply to covered H-1B petitions, but confirm current USCIS guidance immediately before each filing rather than relying on this article’s publication date
  • Build contingency into budgeting for any petition that could still be pending if the fee is reinstated by a later ruling or a successful stay request
  • This is a stay denial, not a final merits decision: treat the fee’s absence as the current operating reality, not a settled outcome
  • For roles or candidates where H-1B cap exposure or this litigation’s uncertainty is the real constraint, evaluate whether O-1A is a cleaner path: no lottery, no cap, and unaffected by this fee dispute. See our O-1A vs. H-1B comparison
  • Watch for the First Circuit’s decision on the merits appeal, since that ruling, not this stay denial, will be the next real inflection point

The pattern worth watching

Each turn in this litigation has reinforced the same operational lesson: the fee’s status is a snapshot, not a settled fact, and filing decisions built around “the fee is currently off” carry real risk if a later stay or merits ruling reverses course again. Employers with H-1B pipelines who can also route qualifying candidates through a cap-exempt alternative reduce their exposure to a dispute that, on the current schedule, is not going to be fully resolved for some time.