Administration Takes $100,000 H-1B Fee Fight to the Ninth Circuit, Putting the Payment Before Three Appeals Courts

The government has asked the Ninth Circuit to overturn a California ruling that froze the agency policies behind the $100,000 H-1B payment. Nothing changes for employers today, but the fee is now before three federal appeals courts at once.

The Trump administration has appealed a federal judge’s order that blocked the agency policies used to collect the $100,000 payment on new H-1B petitions, Bloomberg Law reported Monday. The notice of appeal, filed Oct. 9 in Global Nurse Force v. Trump, sends the case to the U.S. Court of Appeals for the Ninth Circuit and makes it the third appellate court weighing the fee. For employers deciding whether to petition for a worker abroad, the rules that apply this week are still set by the trial-court orders, not by the appeal.

The order under appeal came Sept. 30 from U.S. District Judge Haywood S. Gilliam Jr. of the Northern District of California. He vacated the DHS, USCIS, State Department and CBP memos and guidance that put the payment into effect under Proclamation 10973 and its one-year extension, Proclamation 11069, and barred the agencies from enforcing them until they go through notice-and-comment rulemaking. He left the proclamations themselves in place. Immigration Analytics covered that ruling when it was issued.

A notice of appeal does not suspend a judgment; only a stay does, and none had been reported as of Monday. The speed is still telling. When the United States is a party, it has 60 days to appeal a civil judgment. The government used nine.

One payment, three appeals courts

The appeal has limited immediate payoff for the government. The Massachusetts judgment already set aside the same policies, so a win in the Ninth Circuit alone would not bring them back. What the appeal does is keep an adverse ruling from becoming final and widen the field for a split among the circuits. If the D.C. Circuit sides with the government while the First or Ninth Circuit does not, the Supreme Court would be the natural next stop.

The courts are also ruling on different grounds, and that matters more than the scorecard. In refusing a stay, the First Circuit panel said the government had not made a strong showing that the presidential entry powers in 8 U.S.C. 1182(f) and 1185(a), which say nothing about payments, authorize a charge like this. Judge Gilliam’s ruling rests on procedure: the agencies skipped notice and comment and did not weigh alternatives or employers’ reliance interests. A procedural defect can be repaired with a rulemaking. A lack of statutory authority cannot.

The separate fee rule is not a fix. DHS’s Aug. 25 proposal would charge $103,265 on each cap-subject H-1B petition, including advanced-degree cases, under the fee-setting authority of INA section 286(m). The proposal says that charge would be owed in addition to any payment a proclamation requires, so finalizing it would not cure the defects found in the proclamation policies. It would create a second charge with its own legal exposure. DHS projected 85,000 petitions a year and about $8.8 billion in annual revenue, and acknowledged some employers may file fewer petitions. A coalition of 22 attorneys general, led by California and Massachusetts, argued in comments filed Sept. 24 that the charge is a tax Congress has not authorized. DHS defends it as recovering immigration-system costs across DHS, the Justice Department, the State Department and the Labor Department.

For employers, two separate clocks are now running. Whether the proclamation payment survives turns on the appeals. Whether the $103,265 fee arrives turns on a final rule DHS has not yet issued, and on the lawsuits that would almost certainly follow it.

Next on the calendar

• Oct. 20, 2026: Joint case management statement due in the California case.
• Oct. 27, 2026: Case management conference before Judge Gilliam.
• No date set: Ninth Circuit briefing schedule, a D.C. Circuit decision, and a final DHS fee rule.

This article is for general information and is not legal advice.

Sources

• Trump Appeals Court Loss That Blocked $100,000 H-1B Fee Policies (Bloomberg Law, Oct. 12, 2026)
• Judge Strikes Down Latest Version Of $100,000 H-1B Immigration Fee (Forbes, Oct. 1, 2026)
• State of California v. Mullin, No. 26-1699, order denying stay (1st Cir. July 24, 2026)
• Chamber of Commerce v. DHS, No. 25-5473, reply brief (D.C. Cir.)
• DC Circuit Questions If Trump’s $100,000 H-1B Fee Is a Tax (Bloomberg Law)
• DHS, Fee for Certain H-1B Petitions, proposed rule, 91 FR 54817 (Aug. 25, 2026)
• California Attorney General, multistate comment letter on the proposed H-1B fee (Sept. 24, 2026)

About the Author

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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