$100,000 H-1B additional fee: Court overturns the rule

On September 19, 2025, President Donald J. Trump signed the proclamation “Restrictions on the Entry of Certain Nonimmigrant Workers". It provided for an additional special fee of $100,000 for certain new H-1B petitions, effective September 21, 2025. The fee was not due upon filing the petition with USCIS, but only upon visa issuance or entry into the United States. For many companies, this led to considerable planning uncertainty for months; some imposed precautionary travel bans on H-1B employees. The regulation caused a major upheaval in U.S. immigration law and sparked a broad debate about its legal validity as well as its consequences for U.S. companies and the affected skilled workers.

What the Court Ruled

On June 8, 2026, the U.S. District Court for the District of Massachusetts ruled that the regulation was unlawful and struck it down in its entirety. In the court’s view, the $100,000 fee is not a permissible administrative fee, but rather a tax. However, under the U.S. Constitution, a tax of this magnitude may only be enacted by Congress, not by the executive branch through a proclamation. Thus, the regulation violates the Administrative Procedure Act (APA) and the constitutional principle of separation of powers. The ruling was issued as a summary judgment in favor of the 20 plaintiff states and applies nationwide.

The decision is not yet final

The ruling is not yet final. The U.S. government has already announced that it will appeal and may request a stay, which would temporarily reinstate the fee. Different rulings are possible in other cases (including those in Washington, D.C., and San Francisco). The issue is not expected to be definitively resolved until it reaches a higher court. Until then, the fee remains suspended, and the legal situation should be monitored closely.

This distinction applied as long as the fee was in effect. It will apply again if a court reinstates the regulation.

Those affected were:

• New H-1B petitions filed on or after September 21, 2025, for individuals outside the United States who are applying for an H-1B visa for the first time through a US consulate or who are entering the country for the first time in connection with a petition (I-797 Approval Notice).

The following were not affected:

• Petitions submitted before September 21, 2025.
• People whose petitions have already been approved (I-797) or proceedings pending as of the cutoff date.
• Individuals who entered the country solely on the basis of a pre-existing, valid H-1B visa.
• H-1B Extensions and Changes of Status Within the United States (Extension/Change of Status Without Consular Processing).
• Other US work visas (such as L-1, O-1, E-2).

The proclamation also provided for a possible exception for applications in the “national interest,” particularly for healthcare professionals. However, it remained unclear what criteria would be used to grant this exception. Significant questions of interpretation also arose in other areas, such as which scenarios were actually covered by the additional fee. No binding guidelines or detailed instructions were published by US authorities. In practice, therefore, it was often necessary to assess on a case-by-case basis whether the fee applied at all or whether an exception might be applicable.

Companies that have already paid the $100,000 may be eligible for a refund under certain circumstances. A potential procedure for this has not yet been established; the court has not issued any specific guidelines on the matter. Affected companies should therefore carefully retain proof of payment and the related petition documents in order to be prepared for a potential refund process.

Despite the court's decision, several questions remain unanswered. In particular, it is unclear whether

• whether the appeal will be successful and the additional fee can be temporarily reinstated,
• whether and in what form fees that have already been paid will be refunded,
• how special cases — such as cap-exempt petitions from universities, research institutions, and certain nonprofit organizations, or borderline cases between amendments, transfers, and new applications — would be handled if the regulation were to apply again.

Until a final decision is reached, it is therefore advisable to closely monitor further developments.