CRITICAL UPDATE: Appeals Court Denies Emergency Stay — $100,000 H-1B Visa Fee Vacatur Remains in Full Effect

Following the June 8, 2026 District Court decision striking down the $100,000 H-1B fee requirement in State of California v. Mullin (PDF copy), a major appellate development has occurred.  On July 24, 2026, the U.S. Court of Appeals for the First Circuit officially DENIED the federal government’s emergency motion to stay the vacatur order pending appeal (PDF copy).

As a result, the temporary administrative stay—which was put in place pending the resolution of the emergency motion—has expired, and the nationwide vacatur of the $100,000 payment requirement is actively in full force. The Department of Homeland Security (DHS) has formally confirmed that it will comply with the court’s order while it considers its next steps.

First Circuit Decision: Key Findings (July 24, 2026)

In an order issued by Chief Judge Barron and Circuit Judges Gelpí and Rikelman, the First Circuit rejected the government’s request to reinstate the fee during the appeal. Key points from the ruling include:

• No High Likelihood of Success: The court concluded that the government failed to make a “strong showing” that it would succeed on the merits of its appeal.
• Requirement of Explicit Congressional Delegation: Reaffirming established precedent, the court held that when the executive branch attempts to impose significant financial burdens on regulated parties, Congress must explicitly delegate that authority.
• INA Provisions Do Not Authorize Taxes/Fees: Neither Section 212(f) nor Section 215(a) of the Immigration and Nationality Act (INA)—which grant the President authority to restrict alien entry—contains any statutory reference authorizing the imposition of the kind of payment requirement at issue. The court highlighted that when Congress intends to establish fees or delegate fee-imposing authority under the INA, it does so explicitly in the statutory text.
• Agency Action Subject to APA Review: The court rejected the government’s claim that agency action carrying out presidential directives is exempt from judicial review under the Administrative Procedure Act (APA), affirming that the policy imposes “rights or obligations”.

USCIS Response and Current Processing Status

On July 28, 2026, U.S. Citizenship and Immigration Services (USCIS) updated its official guidance to reflect the First Circuit’s ruling:

• Active Compliance: DHS stated that while it “strongly disagrees” with the First Circuit’s order denying the stay request, it will comply with the court’s ruling while considering next steps.
• Standard Submissions Accepted: Based on the compliance notice, USCIS cannot currently enforce the payment requirement for covered H-1B petitions.

Employer Recommendations

We will  continue to closely monitor developments and will provide updates as soon as additional guidance and news becomes available. Employers and individuals with urgent concerns are encouraged to contact us directly. To stay informed, please subscribe to our free weekly newsletter.