Court Strikes Down the $100,000 H-1B Fee: What It Means for F-1 Students and Employers in 2026

The $100,000 H-1B fee is not being collected right now: on September 30, 2026, the federal court for the Northern District of California in Global Nurse Force v. Trump vacated the USCIS, CBP, and State Department rules for collecting this payment, including under the proclamation extended in September 2026. This is the second such ruling, following the June decision of a Massachusetts court. But it is too early to call it settled. On October 9, the government appealed to the Ninth Circuit and asked for a stay of the ruling; as of October 16, there are no reports of a decision on that request. Separately, on October 8, DHS proposed an OPT fee for F-1 students, with the amount tied to the H-1B payment. If you are planning an H-1B, studying on F-1, or hiring foreign professionals, here is what changed and how to proceed as of October 16, 2026.

In short:

• Proclamation 10973 of September 19, 2025, imposed a $100,000 payment on new H-1B petitions for workers outside the US. On September 18, 2026, Proclamation 11069 extended it until September 21, 2027.
• The rules for collecting the fee have been vacated by two courts: on June 8, 2026 (Massachusetts) and on September 30, 2026 (California). The courts did not strike down the proclamations themselves.
• The government's appeals are pending in the First and Ninth Circuits. The appeal by the US Chamber of Commerce, which lost in the District of Columbia court, has not been decided either, although oral argument was held on March 9, 2026.
• A change of status inside the US, such as F-1 → H-1B, was not subject to the fee even before, provided USCIS approves the change of status.
• On October 8, 2026, DHS published a proposed rule on OPT fees: $70,000 for initial OPT and $30,000 for each subsequent grant, including STEM OPT. It is only a proposal for now; comments are accepted until November 9, 2026.
• The FY2027 H-1B lottery was the first to account for wage level: Level IV gets four chances, Level I gets one.

What the $100,000 H-1B fee is and where it came from

On September 19, 2025, the President signed Proclamation No. 10973 "restricting entry" of certain H-1B workers. It relies on section 212(f) of the Immigration and Nationality Act (INA), which allows the President to restrict the entry of noncitizens. The proclamation took effect on September 21, 2025, at 12:01 a.m. Eastern Time.

Formally, it is not a USCIS fee but a condition of entry. A new H-1B petition for a worker outside the US must be accompanied by a $100,000 payment. The employer pays through pay.gov before filing the petition. Without proof of payment or an approved exception, USCIS denies the petition.

The original term was 12 months, until September 20–21, 2026. On September 18, 2026, Proclamation No. 11069 was signed. It was published in the Federal Register (91 FR 60497) and extends the restriction until September 21, 2027.

According to the text of Proclamation 11069, in the first year the payment was made on only a little over 700 petitions. In practice, for many employers it shut down hiring new employees from abroad.

Who the fee applied to and who it did not: USCIS guidance

On October 20, 2025, USCIS published guidance on the scope of the proclamation. It still matters: if an appellate court reinstates the fee, it will be applied under these rules.

In addition, the Secretary of Homeland Security may grant a national interest exception. According to USCIS guidance, this is allowed only in "extraordinarily rare circumstances." You must show all of the following: the worker's presence is in the national interest; no American worker is available for the position; there is no security risk; and the payment itself would significantly undermine US interests. Requests were sent by email to DHS before filing the petition. The California court noted that some of these requests, filed as early as November 2025, had gone unanswered.

Important: the main "trap" for students is a denial of the change of status. If at the time of USCIS's decision the F-1 status has been violated, OPT has ended without cap-gap protection, or the student has left the US, USCIS may approve the petition only with consular notification. While the fee is in effect, that would mean $100,000 for the employer.

The $100K H-1B fee in court: a timeline of all rulings

Since fall 2025, several lawsuits have been filed against the fee. The courts reached different conclusions: some examined whether the President can impose such a payment, others whether the agencies lawfully adopted the rules for collecting it.

What the California court decided

Global Nurse Force v. Trump (No. 4:25-cv-08454) was the first lawsuit filed against the fee. The plaintiffs include a nurse staffing agency, labor unions, a church, and a faculty association. Judge Gilliam held that the USCIS, CBP, and State Department rules for collecting the payment — memos, instructions, FAQs — were adopted in violation of the Administrative Procedure Act (APA).

According to the court, the agencies did not consider alternatives and did not account for the reliance interests of those who relied on the prior rules. In addition, these are legislative rules that required notice-and-comment. The court vacated these rules and barred their enforcement until the agencies conduct such a process and an analysis of the impact on small businesses. The bar also covers the extension under Proclamation 11069.

What the court did not decide

The court did not find the proclamations themselves unlawful. Nor did it decide whether the President exceeded his authority by imposing what is essentially a monetary charge. The court found class certification unnecessary. Lawyers interpret the reach of each ruling differently. Most analyses proceed on the basis that the fee cannot be collected now.

Important: as of October 16, 2026, the $100,000 fee is not being collected on the basis of two court rulings in effect. If an appellate court stays the rulings, collection may resume. Regular H-1B fees (Form I-129, the fraud prevention and detection fee, ACWIA, and others) remain.

Was the $100K H-1B fee struck down for good?

Short answer: no, not for good. The court rulings can be reversed, and the case, by the government's own assessment, will likely reach the US Supreme Court. There are four scenarios to consider when planning.

1. The Ninth Circuit stays the California court's ruling. In that case, the fee would still be blocked by the Massachusetts court's ruling until the First Circuit decides on the merits.
2. The appellate courts side with the government. The fee returns, likely with the same exceptions as before.
3. The agencies conduct notice-and-comment. The California court expressly pointed to this route. After public comment, the fee rules could be adopted again.
4. A separate DHS regulation. In August 2026, DHS published a proposed rule (91 FR 54817) with a $103,265 payment for certain new cap-subject H-1B petitions. The comment period closed on September 24, 2026. There is no final rule as of October 16, 2026, and the courts have not reviewed it.

The courts have not decided whether the $100,000 already paid will be refunded. There is no refund mechanism as of publication (October 16, 2026). Lawyers advise keeping pay.gov receipts and copies of petitions.

The H-1B 2027 lottery: new weighted selection rules

Alongside the dispute over the fee, the lottery itself changed. On December 29, 2025, DHS published a final rule on weighted selection of H-1B registrations. It took effect on February 27, 2026, and was first applied in the FY2027 season.

How selection works now

At registration, the employer indicates the occupation code (SOC), the work location, and the highest Department of Labor OEWS wage level that the offered wage meets or exceeds. The level determines how many times the registration is entered into the selection pool:

For comparison: under the old random lottery, DHS estimated the average chance at about 29.6%. The weighting applies to both the regular cap (65,000) and the US master's cap (20,000). If there are multiple work locations, the lowest level is used. The level is locked in at registration and must match the subsequent petition.

FY2027 results

• Registration ran from March 4 to 19, 2026, and results arrived by March 31.
• According to data partially released by USCIS in May 2026, about 211,600 registrations were submitted — roughly 37–38% fewer than a year earlier (depending on the comparison base).
• The share of selected candidates with a US master's or higher degree rose to 71.5% (57% a year earlier).
• Petitions were filed from April 1 to June 30, 2026. On July 17, 2026, USCIS announced that the FY2027 cap had been reached and there would be no second round.

Example (hypothetical): a data science master's graduate from Kazakhstan received an offer at Level II. Her registration enters the pool twice: first in the regular cap selection and, if not selected, in the master's cap selection. If the same employer offers Level I, her chances are roughly half as high. You cannot inflate the level artificially: the wage and position in the petition must match the registration.

H-1B for F-1 students in 2026: what it means for you

For students already in the US, the $100,000 fee changed almost nothing, on one condition: the F-1 → H-1B change of status must go through smoothly. The main risks lie not in the fee but in status and deadlines.

Cap-gap and OPT

If the employer timely filed a cap-subject H-1B petition with a change of status, F-1 status and OPT work authorization are extended under the cap-gap rule. Since January 17, 2025, under the H-1B modernization rule, cap-gap extends to April 1 of the relevant fiscal year, rather than October 1 as before. This protects against a gap in status if the decision is delayed.

What students should check

• Continuity of status. A status violation or missed OPT deadlines can lead to a denial of the change of status and approval only with consular notification. While the fee is in effect, that is a costly outcome for the employer.
• Travel. Leaving the US before a decision on a change-of-status petition effectively abandons the change of status request.
• New F-1 rules. The rule eliminating duration of status (a fixed period of stay) was to take effect on September 15, 2026, but on September 14 a federal court postponed it nationwide; the government is appealing that ruling. Details in our article F-1: new rules for 2026.
• Proposed OPT fee. On October 8, 2026, DHS published a proposed rule (91 FR 64566): $70,000 for an initial OPT recommendation and $30,000 for each subsequent one, including a STEM OPT extension. The school pays before entering the recommendation in SEVIS, but it may pass the cost on to the student or the employer. DHS explicitly ties the amount to H-1B payments: OPT should not become a way around them. The fee is not in effect now. Under the proposal, it applies to recommendations issued after a final rule takes effect (60 days after publication). Comments are accepted until November 9, 2026.
• Wage level. Graduates with first offers are most often offered Level I or II. Under the weighted lottery, this directly affects their chances.

If you are just planning to study in the US, see our overview of the F-1 student visa and our real F-1 change of status approvals.

What it means for employers

While the court injunctions are in effect, lawyers recommend not paying $100,000 on new petitions. But budgets should be planned with the possibility that the fee returns. For employers in the Russian-speaking community — IT, logistics, healthcare, construction — the practical takeaways are:

• Candidates inside the US are more cost-effective. Change of status, extension, and transfer of H-1B to a new employer were not subject to the fee under any version of the rules.
• Hiring from abroad — with a buffer. When hiring someone outside the US, plan for a scenario in which the fee is reinstated before the petition is filed.
• Wages matter more than before. The OEWS level now affects lottery chances, and therefore workforce planning for FY2028.
• Documents and deadlines. Keep receipts, Pay.gov records, and copies of petitions in case a refund procedure appears.

Discuss a specific strategy for each candidate with an immigration attorney: the situation is changing faster than agency guidance is issued.

Alternatives to H-1B: O-1, L-1, EB-2 NIW

The lottery, the fee, and wage levels make H-1B less predictable. That is why many professionals are considering other paths in parallel. None of them is subject to the $100,000 proclamation.

O-1 has no annual cap and can be filed at any time of year. The evidentiary requirements are high. Details on the criteria in our article O-1 visa: 2026 requirements and on the O-1 visa page.

EB-2 NIW lets you file the petition yourself, with no job offer and no lottery. More in EB-2 NIW requirements. Keep the Visa Bulletin queue in mind: for some countries it is long.

Which path is realistic for you depends on your profile, evidence, and timeline. This calls for an individual assessment.

What to do now

1. Check your scenario against the table above. If you are in the US and changing status, the fee most likely does not apply to you. If you are abroad, follow the appeals.
2. F-1 students — watch your status. Check your OPT, STEM OPT, and I-20 dates, and do not leave the US while a change-of-status petition is pending. If you are planning OPT, discuss the recommendation timing with your DSO: under the proposal, the fee would not affect recommendations issued before a final rule takes effect.
3. Employers — do not pay the fee without consulting a lawyer. While the injunctions are in effect, check current USCIS, CBP, and State Department practice with an attorney before filing.
4. Keep your payment records if you have already paid $100,000: pay.gov receipts, copies of petitions, correspondence with DHS.
5. Plan FY2028 with wages in mind. Registration usually takes place in March. The OEWS level needs to be determined in advance.
6. Prepare a plan B. Assess O-1, L-1, or EB-2 NIW so you do not depend solely on the lottery.
7. Follow the news. Key events: the Ninth and First Circuit decisions, the Chamber of Commerce appeal, the fate of the proposed $103,265 rule, and the proposed OPT fee.

How M&M can help

• Assessing alternatives. If H-1B did not work out, we will help you figure out whether O-1, EB-1A, or EB-2 NIW fits you. You can start with a free assessment.
• Document preparation. We prepare document packages for O-1, EB-2 NIW, and change of status petitions together with licensed partner attorneys.
• Translations and notary. We provide certified translations for USCIS and notarize documents with our in-house notary. Contact us to discuss your case.

Sources

• Federal Register: final rule on H-1B weighted selection (12/29/2025)
• U.S. Chamber of Commerce: Chamber of Commerce v. DHS (D.C. Circuit case)
• Forbes: Judge Strikes Down Latest Version Of $100,000 H-1B Fee (10/01/2026)
• Bloomberg Law: Trump Appeals Court Loss That Blocked $100,000 H-1B Fee Policies
• Samper Law: A Second Court Has Blocked the $100,000 H-1B Fee
• Klasko Immigration Law Partners: $100,000 H-1B Fee Blocked Again
• American Immigration Council: USCIS Implements the H-1B $100,000 Fee
• Greenberg Traurig: DC Court Upholds Proclamation; Wage-Weighted Lottery for FY 2027
• Mintz: USCIS Announces FY2027 H-1B Cap Reached
• Vialto Partners: USCIS reaches FY2027 H-1B cap
• Federal Register: Optional Practical Training Fees, proposed rule (10/08/2026)
• Bloomberg Law: DC Circuit Questions If Trump’s $100,000 H-1B Fee Is a Tax (03/09/2026)
• DiRaimondo & Schroeder: DHS Proposes Fees of $70,000 for Initial Grant of F-1 OPT (10/12/2026)

This material is for informational purposes only and is not legal advice. M&M Document Preparation is not a law firm. Information is current as of October 16, 2026.