2026 Alert: Court Strikes Down $100,000 H-1B Fee, But USCIS Set to Appeal

A federal district court in Massachusetts has invalidated the U.S. Citizenship and Immigration Services (USCIS) $100,000 H-1B fee, ruling it constitutes an unlawful tax rather than a permissible regulatory fee. The court held that the Immigration and Nationality Act (INA) does not grant the President authority to impose taxes, as that power rests exclusively with Congress under the Constitution. The ruling creates an immediate but potentially temporary reprieve for employers seeking to sponsor new H-1B workers. USCIS is currently barred from collecting the fee nationwide under this decision. However, the agency is widely expected to file an appeal and seek a stay of the ruling, which could reinstate the fee requirement on short notice. The legal landscape remains divided. A separate federal district court in Washington, D.C. had previously ruled that the President holds broad enough authority under INA Section 212(f) to impose such a fee. That conflicting case, brought by the U.S. Chamber of Commerce, is currently pending before the D.C. Circuit Court of Appeals, setting the stage for a potential circuit split. The $100,000 fee was originally announced on September 19, 2025, and later clarified by USCIS on October 21, 2025, to apply only to new H-1B petitions — not to change of status, extensions, or employer changes for individuals already present in the United States. For employers and immigration practitioners, the current situation calls for caution. Filing an H-1B petition without the fee may result in rejection or denial if USCIS successfully obtains a stay or wins on appeal. The fee, in its current form, is scheduled to expire on September 20, 2026, though the administration may seek to extend it pending the outcome of litigation.