[Please note that on June 12, 2026, the Circuit Court of Appeals reinstated the $100K H-1B Fee pending its full review of the lower court decision.]
On Monday, a District Court in Massachusetts struck down the U.S. Citizenship and Immigration Services (“USCIS”) policy that implemented the $100,000 H-1B Fee. This Fee was established by President Trump’s Executive Order issued last September. The Court found that the $100,000 Fee was an unconstitutional tax on employers seeking to hire H-1B visa workers. The court also found the policy unlawful under the Administrative Procedure Act. Specifically, the Court stated that the policy unfairly burdened hospitals, schools, and other organizations that were not expressly targeted by the policy.
The Court vacated the entire policy meaning that USCIS is not currently permitted to collect the $100,000 Fee from H-1B employers on a nationwide basis. However, USCIS is likely to appeal the decision. This means another court would review the decision, which may allow USCIS to continue collecting the Fee until the review has been completed. Ultimately, the United State Supreme Court may want to decide the issue as it involves tax law and immigration law questions that the Supreme Court has shown interest in recently.
The decision did not address the issue of possible refunds for fees already collected.
Bernstein Shur will closely monitor further developments related to the $100K H-1B Fee and will provide meaningful updates to our clients.