On June 8, 2026, the District of Massachusetts struck down the $100,000 fee imposed on employers filing H-1B petitions for workers abroad. The court, in State of California et al. v. Markwayne Mullin et al., found that the fee mandated by a September 19, 2025 presidential proclamation amounted to an unconstitutional tax that the President lacked authority to impose. The court vacated the implementing policy materials in their entirety.
The proclamation required employers submitting new H-1B petitions on behalf of workers outside the United States to pay an additional $100,000 through pay.gov, on top of existing statutory and regulatory fees. The fee applied to petitions filed on or after September 21, 2025.
Why the Court Struck Down the Fee
The court ruled that the $100,000 charge constituted a tax rather than a penalty or regulatory fee because employing H-1B workers is lawful and the payment was not tied to any illegal conduct.
The court also found that the President’s authority under Sections 212(f) and 215(a) of the Immigration and Nationality Act to restrict entry into the United States does not include the power to impose taxes, which is reserved to Congress.
Administrative Procedure Act Findings
In addition to finding that the fee exceeded presidential authority, the court held that the implementing agencies violated the Administrative Procedure Act (APA). According to the court, the agencies failed to comply with notice-and-comment rulemaking requirements, acted beyond their statutory authority, and did not adequately consider key factors, including employer reliance interests and the potential impact on industries such as education and health care.
Employer Considerations
The ruling means the $100,000 fee should no longer apply to new H-1B petitions filed on behalf of workers abroad. Employers with employees who would have been subject to the fee should evaluate whether to proceed with eligible petitions while the court’s decision is in effect.
Employers that have already paid the fee for pending petitions may wish to consult immigration counsel for potential refund options and appropriate next steps.
Looking Ahead
All other H-1B filing fees remain unchanged. The federal government is expected to appeal the decision to the First Circuit and may seek a stay, which could temporarily reinstate the fee while the appeal is pending.
If you have any questions, or would like additional information, please contact one of the attorneys on our Immigration team.
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