Employers now have two separate federal court orders standing between them and the $100,000 H-1B payment.
On September 30, 2026, Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the Northern District of California granted a preliminary injunction in Global Nurse Force v. Trump. The court vacated the policies that U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and the Department of State used to carry out the fee, and barred the agencies from enforcing them. The order covers the original 2025 proclamation and Proclamation 11069, which extended the fee through September 21, 2027.
What the Court Decided
The court found that the agency policies were likely “legislative rules,” which create new legal obligations and require public notice and comment under the Administrative Procedure Act. The agencies skipped that step. They also likely acted arbitrarily, because they ignored alternatives and the interests of affected employers. The agencies cannot enforce the fee again until they complete that rulemaking and the small-business analysis required by the Regulatory Flexibility Act.
Two details matter. The court blocked the agency policies, not the proclamation itself. Some coverage has described the proclamation as invalidated, but the order is narrower. And this is a preliminary injunction, not a final judgment. The case continues, with a case management conference on October 27, and the government can appeal.
Why a Second Ruling Matters
In June, Judge Leo T. Sorokin of the District of Massachusetts vacated the policy implementing the original proclamation in a case brought by 20 states led by California. In July, the First Circuit declined to pause that ruling during the appeal. The California order adds a separate block and expressly covers the 2026 extension, so a government win in one case would not bring the fee back on its own.
What the Court Record Shows
According to the new proclamation, employers made the payment for over 700 petitions after the original fee took effect. The court heard from employers well outside technology. A rural kidney care practice has waited almost a year for an answer on a national interest exception request and now has about 100 new patients on a waitlist. A school on a South Dakota reservation received ten applications for two teaching positions, and every applicant needed H-1B sponsorship. The court also rejected the argument that employers had to request an exception before suing, since some requests had gone unanswered for nearly a year.
What Employers Should Do Now
- Proceed without the $100,000 payment, for now. While the orders stand, the agencies cannot collect it. Keep a record of filing dates in case that changes.
- Plan for slow decisions. MU Immigration reports seeing very few decisions by U.S. Citizenship and Immigration Services on petitions that would previously have required the fee. Build extra time into start dates.
- Keep payment records if you already paid. It is not yet clear whether those payments will be refunded.
- Budget for the separate $103,265 proposal. In August, the Department of Homeland Security proposed a $103,265 fee on every cap-subject H-1B petition, this time through formal rulemaking. The September 30 order does not decide that proposal. Comments closed on September 24, and no final rule has been published.
Klug Law Firm helps HR and talent acquisition teams plan H-1B hiring while these rules keep shifting. Call (212) 495-9245 or use our contact form to review pending petitions and next year’s H-1B budget.
This article is provided for informational purposes only and does not constitute legal advice.