H-1B $100,000 Fee Extension Blocked: 2026 Executive Order Impact on EB-3 Applicants

On September 18, 2026, President Trump signed an executive order titled 'Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program,' accompanied by a proclamation extending the $100,000 H-1B payment requirement through September 21, 2027. Despite the extension, the fee remains legally unenforceable due to an existing federal court vacatur. The U.S. District Court for the District of Massachusetts (Case No. 1:25-cv-13829) vacated the original fee policy on June 8, 2026, ruling it functioned as an unauthorized tax and violated the Administrative Procedure Act. The First Circuit subsequently declined to stay that vacatur in July 2026, meaning collection remains barred while the government pursues its appeal. Legal analysts note that the September 18 proclamation simply extends a policy already set aside, and should therefore remain blocked pending further judicial clarification. The September 18 enforcement executive order is legally distinct from the fee proclamation. It directs increased interagency coordination and instructs agencies to consider employer layoff history when adjudicating H-1B petitions. This heightened displacement scrutiny may lead to more rigorous review of H-1B sponsorships, wages, and hiring practices—even while the $100,000 fee itself remains unenforceable. For EB-3 applicants currently maintaining H-1B status while their green card cases are pending, this development is significant. Employers sponsoring both H-1B and EB-3 petitions should document their hiring practices and ensure no recent layoffs of U.S. workers in similar roles, as adjudicators may apply increased scrutiny across related employment-based filings. A separately proposed regulatory fee exceeding $103,000 for cap-subject H-1B petitions is also under DHS rulemaking but is not yet a collectible obligation. Employers and their counsel should monitor litigation developments in the Massachusetts case, as any appellate ruling could rapidly change the enforcement landscape heading into the FY2027 H-1B cap season.