It’s been three weeks since the H-1B $100K proclamation was issued, and we still don’t know if this only affects 2026 lottery and all future cap exempt cases - or transfers, and how the rule will be implemented.
In the meantime, a major federal lawsuit has been filed in Northern California by a coalition of healthcare, education, labor-union, and religious organizations challenging the new rule.
The lawsuit challenges the legality of the $100K proclamation, arguing:
- The President cannot impose new visa fees or taxes without Congress.
- The measure violates the Administrative Procedure Act (no notice-and-comment, arbitrary and capricious).
- It contradicts the detailed H-1B fee structure Congress already enacted.
- The “national-interest” waiver is vague and open to political favoritism.
- The rule threatens critical sectors.
What’s next?
- The plaintiffs are expected to file a motion for preliminary injunction (PI) shortly, seeking to block the $100,000 fee while the case proceeds.
- The court could hear the motion as soon as mid-October. If the judge grants a temporary restraining order or PI, the fee should be suspended nationwide until final resolution.
- Any injunction would likely be appealed to the Ninth Circuit and potentially the U.S. Supreme Court.
While this is happening, here’s our advice:
- Keep filing H-1B transfers and extensions as usual (of course you will need to wait for the government to reopen first.)
- They are getting receipted and in some cases approved without the $100K fee (by the way, there is no way to pay the fee yet.)
- If you have a transfer or extension filed after 9/20, exercise discretion if you want to travel on the basis of that petition. There is a small chance that the proclamation would require the fee to be paid before you can reenter (though that doesn’t seem to be the case just yet.)
- If you or an employee plans to enter the lottery next year, brainstorm Plan B’s with your counsel. We are currently assessing alternatives like the O-1 visa for for our clients and their employees.
Any other thoughts or questions? Please don’t hesitate to contact our office.
