Federal Court Vacates Trump’s $100,000 H1B Fee--UPDATE

Sheridan Green

7/25/2026

Update: The First Circuit Court of Appeals in State of California v. Mullin yesterday denied the Trump administration's motion to stay the underlying ruling finding the $100,000 H1B fee illegal. While this is merely the denial of a request for stay, it is a significant predicter of the court's ultimate decision on the merits because a stay of this kind requires the government to show it is "likely to succeed on the merits." Thus, the court, although it will continue to consider the issue in depth, has preliminarily decided in favor of the plaintiffs.

The court holds: "[T]he defendants have failed to make a strong showing as to the critical likelihood-of-success factor, and their arguments regarding the remaining Nken factors present, at most, a mixed picture."

The Nken factors are a reference to the U.S. Supreme Court's decision in Nken v. Holder, 556 U.S. 418, 427 (2009):

(1) whether the defendants have "made a strong showing that [they are] likely to succeed on the merits of their appeal"

(2) whether they "will be irreparably injured absent a stay"

(3) "whether issuance of the stay will substantially injure the other parties interested in the proceeding"; and

(4) "where the public interest lies."

6/11/2026

A federal district judge in Boston on Monday (6/8/2026) held that the new $100,000 H1B fee put into place in Sept. 2025 was not a valid exercise of the President’s power. The court explained that the constitution reserves the taxing power to Congress unless Congress expressly delegates that power to the executive branch.

The court held that the $100,000 fee was a tax and that Congress had not delegated the authority to impose this tax to the President. The court relied heavily on a recent Supreme Court case finding that Trump’s tariffs were illegal taxes (Congressional authority to impose a tax not having been delegated to the executive, in that case, under the 1977 International Emergency Economic Powers Act.

The government attempted to argue that the fee was not a tax but a penalty. The judge dismissed this, asserting that lawful penalties were punishments to prohibit illegal behavior but that there is nothing illegal about hiring an employee under the H1B program.

The court also explained that the new fee did not fall within the statutory authority to set benefit adjudication fees because 8 U.S.C. § 1356(m) only permits the Attorney General to set adjudication fees “at a level that will ensure recovery of the full costs of providing all such services” and of “any additional costs associated with the administration of the fees collected.”   

The Judge held that the $100,000 payment requirement plainly does not constitute an adjudication fee. The government had never attempted to make a claim, for example, that costs of adjudicating H1Bs had suddenly increased by $90,000 or that the $100,000 fee was replacing some pre-existing fee.