Two federal courts have now concluded that the $100,000 payment requirement for new H‑1B petitions was unlawful—not as immigration policy, but because it exceeded the executive branch’s legal authority—underscoring a core separation‑of‑powers limit that outlasts any single administration.
The Short Version
- Massachusetts federal court vacated the $100,000 H‑1B payment policy in full, holding it functioned as an unauthorized tax rather than a permissible regulatory fee.
- Separately, a California federal court blocked USCIS and the State Department from implementing the payment for failing APA rulemaking requirements.
- The First Circuit denied the government’s request to stay the Massachusetts judgment; USCIS indicated it would comply and not collect the payment while litigation proceeds.
- The White House framed the policy as an entry restriction under INA sections 212(f) and 215(a), but courts found that framing did not supply taxing or fee‑setting authority.
What the courts actually decided—and why it matters
Two tracks of litigation converged on the same outcome. First, a federal judge in Massachusetts issued a final judgment vacating the $100,000 payment requirement in its entirety, reasoning that the charge operated as a tax—an exaction designed to raise revenue, not defray administrative costs—and that Congress had not delegated taxing authority to the President or the implementing agencies for this context. That label—tax rather than fee—carries constitutional weight: the power to tax is Congress’s, and when the executive conditions access to a benefit or process on a six‑figure payment without a statutory basis, courts view it as a usurpation, not a policy choice.
Second, in a separate case, a federal judge in the Northern District of California enjoined the Department of State and USCIS from implementing the policy because the agencies did not follow the Administrative Procedure Act’s notice‑and‑comment procedures for a legislative rule. If you change legal rights and obligations of a broad class—here, employers sponsoring H‑1B professionals—you must either point to a clear statute that authorizes the charge or run a proper rulemaking. The California court found the government did neither before attempting to collect the payment.
The President’s entry‑suspension power is broad; it isn’t a blank check
The administration defended the payment as an entry restriction under Immigration and Nationality Act sections 212(f) and 215(a): the President may suspend the entry of certain noncitizens or impose conditions on entry he deems appropriate, and the White House documents presented the $100,000 requirement as precisely that—an entry condition designed to curb perceived abuses in the H‑1B program. Courts did not dispute that 212(f) and 215(a) grant sweeping authority over who may enter. They rejected the leap from conditioning entry to imposing a massive monetary exaction that functions like a tax. The Massachusetts decision squarely held those INA provisions do not delegate the power to levy such a payment; the California ruling added that the agencies could not bootstrap the payment through implementation without first complying with the APA.
This distinction between regulating entry and raising revenue is not academic. Congress has repeatedly legislated specific H‑1B surcharges—fraud prevention fees, 50/50 employer fees, and other targeted assessments—while confining general filing fees to agency cost recovery. Against that backdrop, a $100,000 across‑the‑board payment looks unlike program administration and very much like fiscal policy, which the Constitution reserves to Congress.
Mechanism: how the payment was supposed to work—and why the rollout faltered
The 2025 proclamation announced that new H‑1B petitions would be accepted only if “accompanied or supplemented” by a $100,000 payment. The requirement, as framed, covered initial petitions tied to consular processing and entry, not routine extensions or changes of status, and it was renewed by proclamation in 2026. For implementation, USCIS and the State Department would have needed to create collection, verification, and remittance mechanisms and harmonize petition adjudication with visa issuance. That is precisely where APA obligations typically attach: when an agency changes the legal conditions that govern how regulated parties file and what they must pay, it generally must propose a rule, take public comment, and issue a reasoned final rule—unless a statute already fixes the amount or clearly authorizes the agency to impose it without rulemaking.
Courts found those preconditions missing. In California, the judge concluded the agencies attempted to effectuate a substantive payment regime without the required process; in Massachusetts, the judge went further, holding that no amount of process could save an unauthorized tax. Those two holdings are complementary: even if the agencies had followed the APA, they still would have needed a valid congressional delegation to impose a payment of this magnitude.
Procedural posture and practical effect
The Massachusetts judgment vacated the policy; the First Circuit declined to stay that relief, and USCIS stated it would not collect the payment while litigation proceeds. The California injunction separately restrains agency implementation pending APA compliance—effectively another barrier to collection even apart from the tax‑power holding. For employers and foreign professionals, the upshot is straightforward: there is no lawful mechanism in force to condition new H‑1B petitions on a $100,000 payment as of these rulings.
The administration did issue a 2026 proclamation renewing the entry‑restriction framework, but proclamations do not overcome judicial vacatur or supply missing statutory authority. Agencies cannot lawfully collect a vacated tax while an appeal is pending; a denied stay cements that practical reality during appellate review.
Where the genuine disagreement lies
The core dispute is not over the President’s power to suspend or restrict entry—it is over whether that power can be used to impose a six‑figure exaction without Congress. The government’s position is that 212(f)/215(a) are broad enough to encompass monetary conditions; the courts’ position to date is that when a payment is designed and functions as a tax, immigration entry authority does not morph into a taxing power, and agencies cannot supply what Congress withheld by skipping or short‑cutting rulemaking. That is a clean separation‑of‑powers question with durable implications: administrations of either party can restrict who enters; neither can conjure new revenue instruments by proclamation alone.
President Trump’s $100,000 H-1B visa fee just suffered another major court setback.
A second federal judge has blocked the administration from enforcing the fee on new high-skilled worker petitions, ruling that federal agencies failed to follow required rulemaking procedures.… pic.twitter.com/8NMUdSVJmf
— Unmask The SYS (@UnmaskTheSys) October 2, 2026
Implications for policy and for employers
For policymakers, the paired rulings are a cautionary tale about instrument choice. If the goal is to deter perceived misuse of the H‑1B category, Congress can legislate targeted surcharges or eligibility criteria; agencies can promulgate well‑supported rules within delegated limits. But leveraging entry‑suspension authority to demand a six‑figure payment invites judicial rebuke on both constitutional and administrative grounds. For employers, the decisions reduce immediate uncertainty: covered H‑1B filings are not contingent on a $100,000 payment under current law. That does not insulate the program from change—Congress could enact new surcharges, and agencies can adjust fees for cost recovery through APA‑compliant rules—but it restores the familiar boundary between immigration control and tax policy.
Sources:
reason.com, mass.gov, vensure.com, hindustantimes.com, reuters.com, oiss.yale.edu, whitehouse.gov
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