A federal judge’s order blocking a $100,000 fee for H-1B visas was wrong to determine the fee is an unauthorized tax and should be stayed pending appeal, the Department of Homeland Security told an appeals court in Boston, reports Bloomberg Law.
President Trump’s September 2025 proclamation mandates that employers petitioning for new H-1B visas must pay $100,000 before hiring foreign workers.
In a June 8 decision, Judge Leo Sorokin of the US District Court for the District of Massachusetts set aside the $100,000 fee, granting the request of 20 Democratic-led states that challenged the visa policy. The judge found that it encroached on Congress’s exclusive authority to impose taxes and to violate the separation of powers. This decision offers relief to US technology companies that depend on skilled foreign workers.
On June 12, Judge Sorokin agreed to pause his decision, pending the First Circuit’s ruling on the government’s motion for stay pending appeal.
DHS Appeal
The fee that President Donald Trump imposed to restrict the flow of H-1B visas falls within his broad authority under federal immigration law, the department said in its June 18 filing to the US Court of Appeals for the First Circuit.
The one-time application fee isn’t properly considered a tax, but the president would have proper authority to order it even if it were, the Trump administration argued.
The visa fee is one part of the Trump administration’s broader efforts to limit immigration into the US. The president has said companies abuse the H-1B program by bringing in college-educated foreign employees for jobs that could be done by US workers.
The department is asking the court to let it continue enforcing the fee pending its appeal. At a minimum, the Court should limit the nationwide order to apply solely to the Plaintiff States as employers.
DHS states that foreign workers abroad pursuing cap-exempt jobs are likely to petition en masse after waiting for their sponsoring employers to file. Furthermore, some of the 85,000 aliens selected in the H-1B 2027 season may have had their employers delay petitions until the impending June 30 deadline. This influx could take crucial jobs from Americans and lower their wages, contradicting the Proclamation.
Current Status
The petition filing window opened on April 1, 2026, and will close on June 30, 2026, giving chosen registrants 90 days to submit their completed H-1B petitions, according to USCIS.
Meanwhile, the states’ case is one of at least three lawsuits challenging the H-1B fee, with two others pending in the D.C. Circuit and the Northern District of California. The fee, which applies to all new H-1B hires who require processing at consulates outside the US, is facing multiple legal challenges.
Decisions on the policy are also pending in the Northern District of California and the District of Columbia Circuit. Plaintiffs notified judges in both cases of Sorokin’s order, saying it strengthened their challenges to the fee, reported Bloomberg.
The First Circuit’s current case is anticipated to center on whether the $100,000 fee is an illegal tax imposed without congressional approval or a legitimate immigration restriction. This issue could influence the extent of the president’s power over employment-based visa programs.
Disclaimer: This article is intended for general awareness only and does not constitute legal, immigration, or financial advice. The legal status of the $100,000 H-1B fee remains fluid and subject to rapid change as appellate proceedings advance. Employers and affected parties should consult qualified immigration counsel for guidance specific to their circumstances. This article does not constitute legal advice.