The $100,000 H-1B Fee and the September 20 Cliff: The Filing Decision Employers Can’t Postpone

Somewhere in a general counsel’s inbox this month is a forwarded news alert with a subject line that reads, in effect, “Court blocks $100,000 H-1B fee.” The natural response is to exhale and move on. That exhale is the mistake.

The fee is not being collected today. But “not today” is not the same as “resolved,” and the calendar is about to make that distinction expensive. For any employer that depends on H-1B talent — technology companies, hospitals and health systems, engineering and manufacturing firms, universities, and the venture-backed companies competing with all of them for the same engineers — the next several weeks call for a filing decision, not a sigh of relief.

Here is where things actually stand, and what to do about it.

What the fee is — and what it was never about

In September 2025, Presidential Proclamation 10973 imposed a $100,000 payment requirement tied to certain new H-1B petitions. The number is large enough to have generated real panic, and panic tends to overstate the reach of the rule. It is worth being precise about scope, because scope is where good counsel earns its keep.

The requirement was directed at new H-1B petitions filed for beneficiaries who are outside the United States and would enter on an H-1B visa through consular processing. It was not directed at extensions, amendments, or change-of-status petitions for workers already in the United States. In practice, that distinction determines whether a given hire ever fell within the rule’s cross-hairs at all. Before an employer prices $100,000 into a hiring plan — or, worse, walks away from a candidate — the first question is not “how do we pay this,” but “does this petition even implicate the requirement?” For a meaningful share of filings, the answer is no.

Where the litigation stands right now

The requirement has been in near-constant motion since it took effect. In June 2026, the U.S. District Court for the District of Massachusetts vacated the policy implementing the fee, concluding that it functioned as a tax the Executive lacked authority to impose and that its rollout violated the Administrative Procedure Act. Days later, a short administrative stay briefly put the fee back in force while the government pursued appeal. Then, on July 24, 2026, the U.S. Court of Appeals for the First Circuit declined to keep the fee in place during the appeal, finding that the government had not shown it was likely to succeed on the merits.

The practical result today: the vacatur stands, and the fee cannot currently be collected. Employers may file new H-1B petitions requesting consular notification without submitting the payment.

The practical caveat: this is an interim posture, not a final judgment. The government’s appeal on the merits is still pending, separate challenges remain alive in other courts, and at least one earlier decision reached the opposite conclusion. A conflict among the courts would make eventual Supreme Court review more likely. In other words, the door is open right now, but no one should assume it will stay open on its own schedule.

The September 20 cliff

Layered on top of the litigation is a date that has quietly become the most important variable of all. By its own terms, Proclamation 10973 is a temporary, twelve-month restriction set to expire on September 20, 2026 unless it is extended, renewed, or reissued.

That expiration reframes the entire question. For petitions that can be filed and adjudicated inside the current window, exposure is limited even if a higher court later restores the fee, and even more so if the proclamation simply lapses. For hires with a longer runway — filings that will still be pending, or that cannot realistically be submitted before the window closes — the risk is real and should be priced in, because the two things that could revive the fee are precisely the two things outside any employer’s control: an appellate reversal, or a decision by the Administration to extend or reissue the proclamation.

The honest answer to “will they extend it?” is that no one knows. That uncertainty is not a reason to wait. It is the reason to move deliberately now.

Three exposures that deserve attention before the window closes

Timing and runway. Map every anticipated H-1B filing that would involve consular processing against the September 20 date. Petitions that can be prepared, filed, and reasonably adjudicated inside the window sit in the most favorable posture available. Anything with a longer horizon should be evaluated on the assumption that the fee could return — and staffing, offer timelines, and start dates planned accordingly.

Refunds for anyone who already paid. Some employers paid the fee during the brief window when it was back in force. The court set aside the implementing policy, but the judgment did not create a refund mechanism, and the government has shown little appetite for issuing refunds absent a direct order. Employers who paid should preserve complete payment records now and discuss with counsel whether and how to pursue recovery, rather than assume a check is in the mail.

Reissue and extension risk. The current relief rests on a temporary posture and a temporary proclamation. Build that fragility into planning. That means not treating “the fee is blocked” as a permanent state in budgets, hiring approvals, or communications to business leaders who will remember only the headline.

What to do in the next several weeks

Inventory your pipeline against the calendar. Confirm which planned petitions actually fall within the requirement’s scope and which never did. Prioritize eligible filings that can clear the window. Document decisions and payments contemporaneously, so that if the posture shifts — or a refund opportunity opens — you are working from a record rather than a reconstruction. And align HR, finance, and hiring managers around a single, current message, because in a situation this fluid, the most expensive mistakes come from people acting on last month’s understanding.

The larger point

The $100,000 fee is a vivid example of a quieter shift: immigration decisions have become enterprise-risk decisions. A single proclamation, tied up in litigation, with an expiration date most employers have not marked on a calendar, can swing six figures per hire and reshape a recruiting plan. That is not an HR administrative matter. It is a planning problem that belongs in front of leadership before a filing goes out, not after a payment clears.

Employers that treat immigration as a compliance afterthought will keep learning about these swings from forwarded news alerts. The ones that treat it as a strategic input — mapping exposure, moving inside the windows the law gives them, and keeping counsel in the room before the decision rather than after the problem — will spend the next six weeks making choices instead of reacting to them.

The fee is blocked today. The date is the thing to watch. And the window is open now, which is exactly why it is the wrong moment to look away.

Kripa Upadhyay is a Partner and Co-Chair of Buchalter’s Immigration & Global Mobility Practice, where she advises founders, investors, and multinational companies at the intersection of U.S. immigration, foreign direct investment, and national security. This article is for general informational purposes only, reflects developments as of August 12, 2026 in a rapidly evolving matter, and is not legal advice. Employers should consult qualified counsel about their specific facts.

This communication is not intended to create or constitute, nor does it create or constitute, an attorney-client or any other legal relationship. No statement in this communication constitutes legal advice nor should any communication herein be construed, relied upon, or interpreted as legal advice. This communication is for general information purposes only regarding recent legal developments of interest, and is not a substitute for legal counsel on any subject matter. No reader should act or refrain from acting on the basis of any information included herein without seeking appropriate legal advice on the particular facts and circumstances affecting that reader. For more information, visit www.buchalter.com.