H-1B $100,000 Fee: Unpaid Petitions Being Approved

Employers that skipped the H-1B $100,000 fee on new petitions, relying on two court orders, have started receiving approvals, Business Today reported Oct. 25. What those approvals are worth if the government wins on appeal is less clear.

USCIS has begun approving some new H-1B petitions that employers filed without paying the H-1B $100,000 fee set by President Trump’s 2025 proclamation, according to a Business Today report published Oct. 25. The approvals go to employers who relied on federal court orders in Massachusetts and California barring enforcement of the payment, and they matter most to companies hiring workers outside the United States, the group the payment targets. Business Today reported that approvals have been uneven and slow, with several petitions sitting past the 15-business-day premium processing deadline.

USCIS has said it is complying with the court orders and will collect the payment if those orders are lifted, the outlet reported. Business Today is so far the only established news outlet to report the approvals, and USCIS has not published any count of fee-subject petitions it has decided since the orders took effect.

Why unpaid petitions can be approved at all

Courts began dismantling the collection machinery on June 8, when the federal court in Massachusetts, in a suit brought by 20 states, declared the policy used to collect it unlawful and vacated it in its entirety. On July 24, a First Circuit panel refused to pause that judgment during the government’s appeal in California v. Mullin. The panel found no strong showing that the presidential entry powers in 8 U.S.C. 1182(f) and 1185(a), never before used to impose a payment of this kind, authorize one.

A second front opened Sept. 30, when U.S. District Judge Haywood S. Gilliam Jr. of the Northern District of California blocked the agency policies behind the payment in Global Nurse Force v. Trump, reaching even the one-year extension the President signed Sept. 18 that runs the measure to Sept. 21, 2027. The administration has taken that ruling to the Ninth Circuit, but a notice of appeal does not suspend an order. With no enforceable collection policy, nonpayment is no longer a lawful ground to deny a petition, so approvals are the predictable result, even if the reported delays show they have not been automatic.

Employers whose premium cases ran long already have a remedy: when USCIS misses the deadline, it must refund the premium processing fee and keep the case on an expedited track. But in practice what we find is that when practioners and petitioners request for refund citing delay, USCIS respond back stating that a refund can be requested only after a case is adjudicated. Also the 15 business days premium clock itself may change, since DHS has sent the White House a rule on premium processing deadlines.

What a reversal on appeal could mean for approved cases

USCIS’s reported statement leaves the hardest question open. Collecting the payment “if those orders are lifted” could mean collecting only on petitions filed after a reversal, or it could mean reaching back to cases already approved. The H-1B regulations at 8 CFR 214.2(h)(11) let USCIS revoke an approved petition on notice only on listed grounds, such as a violation of the petition’s terms, an incorrect statement of facts, or an approval that involved gross error. Nonpayment of a charge a court had barred the agency from collecting when the case was decided fits none of them comfortably, and any attempt to reach approved cases would be likely to draw a fresh lawsuit. Until USCIS clarifies, approved employers carry a residual risk, though a far smaller one than a denial.

Timing depends on three appeals courts. Besides the First and Ninth Circuits, the D.C. Circuit is weighing Chamber of Commerce v. DHS, in which the trial court upheld the payment. A government win there, set against the First Circuit’s skepticism, would create a circuit split and a likely path to the Supreme Court.

The orders also do not end employers’ exposure to a six-figure charge. DHS has separately proposed a $103,265 fee on every cap-subject H-1B petition under its fee-setting authority, owed, the proposal says, in addition to any payment a proclamation requires. That rule is not final, and if adopted it would rest on a different statute and need its own court challenge to stop.

For workers abroad, Business Today noted that someone holding an unexpired H-1B visa stamp may be able to travel on the new employer’s approval notice without a fresh consular interview. Workers already counted against the cap with time left on the six-year limit can generally change employers without entering the lottery again.

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

Sources

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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