Policy Alert
Updated September 2026 | By Kodem Law Immigration Practice Group
Is the $100,000 H-1B Fee Still in Effect? What Proclamation 11069 Changed — and What It Didn’t
The $100,000 H-1B entry payment was written to expire on September 21, 2026. It did not. Proclamation 11069, signed September 18 and published September 23, 2026, extends it for another twelve months. And yet no employer is being asked to pay it, because a federal court vacated the policy that implemented it and an appellate court refused to put that ruling on hold. Both facts are true at the same time, which is why the guidance you are reading elsewhere contradicts itself — and why the gap between them is where the real planning risk sits.
The Short Answer: Extended, and Still Not Being Collected
Proclamation 10973 of September 19, 2025 restricted the entry of H-1B specialty occupation workers unless the petition was accompanied or supplemented by a payment of $100,000. By its own terms it expired twelve months after taking effect. Proclamation 11069 — signed September 18, 2026, published September 23 at 91 FR 60497 — extends that restriction to September 21, 2027.
Separately, on June 8, 2026 the U.S. District Court for the District of Massachusetts held the policy implementing the 2025 proclamation unlawful under the Administrative Procedure Act and vacated it in its entirety. The government asked the First Circuit to stay that ruling while it appealed. On July 24, 2026, the First Circuit refused. As of today, practitioner reporting is consistent that employers are not being required to pay when filing — though the same reporting describes uneven handling of affected petitions, with some held and some adjudicated and approved without payment.
Why Both Things Are True at Once — and What Would Change Them
The distinction that does all the work here is routinely reported wrong. The court did not strike down the proclamation. It struck down the agency policy materials that operationalized it. The First Circuit’s own order records the district court’s holding as declaring “the Policy implementing the Proclamation” unlawful and vacating it under 5 U.S.C. § 706(2), in its entirety.
The grounds matter too, and they are commonly overstated. This was an APA ruling, resting on § 706(2)(D), (A) and (C). The tax reasoning that appears in much of the coverage sits inside the statutory-authority limb rather than standing as a constitutional holding: because features of the payment made it resemble a tax within Congress’s Article I taxing power, the court reasoned, Congress needed to have clearly delegated that power before the executive could impose it. No court has held the payment an unconstitutional tax. A court held that Congress had not clearly authorized it.
That framing is what makes the forward-looking question sharp. If the First Circuit reverses, the restriction does not simply switch back on by itself — the vacated materials were the mechanism, and the agencies would face a choice between reviving them and issuing something new, either of which invites fresh APA exposure. Whether the existing vacatur reaches an instrument that took effect on September 21, 2026 is genuinely open. The government’s own framing of 11069 as an extension of 10973 rather than a replacement is the strongest argument that the order still bites. Pulling the other way is a sentence the 2026 text adds at section 3(a) and the 2025 text does not contain, expressly reaching those who must seek admission to effectuate a petition approval “including through consular notification, notification at a port of entry, pre-flight inspection, or pre-clearance.” This question is unresolved and should be treated as a live risk, not a settled comfort.
$100,000 and $103,265 Are Two Different Things
The numbers are close enough to read as a rounding of one another. They are unrelated instruments with different legal bases, different triggers and different populations, and conflating them is the single most common error we see.
| $100,000 Payment | $103,265 Proposed Fee | |
|---|---|---|
| Legal basis | Presidential proclamation (11069, 91 FR 60497) | DHS notice-and-comment rulemaking (91 FR 54817) |
| What triggers it | Entry — a beneficiary abroad seeking admission | Filing — a cap-subject petition, payable at filing |
| Status right now | In force on paper; implementing policy vacated, not collected | A proposal only. Nothing is owed. No final rule |
| Next milestone | Expires September 21, 2027 absent further extension | DHS must answer 11,706 comments before finalizing. No announced date |
| Do they stack? | On their face, yes. The proposed fee is written to apply in addition to all other applicable fees or payments. Model the combined exposure before you budget. | |
What the Restriction Reaches — and What It Does Not
Read on the face of the instrument, section 1(a) restricts entry, excepting those whose petitions carry the payment and subject to a national interest exception held by the Secretary of Homeland Security at section 1(c). Section 1(b) reaches decisions on petitions for beneficiaries currently outside the United States. The covered classification is H-1B alone — INA § 101(a)(15)(H)(i)(b) — with no extension to H-1B1, L or O.
The practical consequence is that nothing on the face of the proclamation reaches an in-country change of status, extension or amendment for a beneficiary who never needs to be admitted. That is a reading of the text, and the entry-versus-petition trigger is precisely the point an attorney should confirm against your facts before you rely on it. Section 2(a) also imposes a duty that survives the litigation question entirely: employers must, before filing a petition for a beneficiary outside the United States, obtain and retain documentation that the payment has been made.
Implications by Audience
Employers and HR
Do not treat the current non-collection as a budget assumption through 2027. Build the consular-hire scenario both ways, keep the section 2(a) documentation discipline regardless, and decide now what you would do if the posture flips mid-adjudication.
F-1 Students Heading Into the Cap
The exemption most students have learned — that an in-country change of status sits outside an entry restriction — is about the proclamation. It does not automatically carry over to a filing fee keyed to cap-subject petitions. Do not assume one answer covers both.
Workers Abroad or Planning Travel
The restriction is an entry condition, so your exposure is highest at the consulate and the port of entry. Confirm your own posture before booking, and understand what happens if the litigation shifts while you are outside the country.
Anyone Who Already Paid
No order has established a refund mechanism. Vacatur stopped the policy going forward; it did not order money returned. Preserve proof of payment and the dates now, while the records are easy to pull.
If You Already Paid the $100,000
This is the cohort nobody is writing for, and it is the one with real money at stake. There were two distinct periods in which the payment was being required: a long first window running from the 2025 proclamation’s effective date to the June 8, 2026 vacatur, and a short second window while the district court administratively stayed its own order pending the First Circuit’s decision on the government’s emergency stay motion, ending July 24, 2026. The commonly reported start date for that second window is June 12, 2026; the appellate order confirms the administrative stay but attaches no date to it, so treat the precise boundary as something to confirm rather than assume.
What to do is unglamorous and time-sensitive: identify which window each payment falls in, preserve the payment record, the petition it attached to, and what the beneficiary ultimately did — entered, was refused, or never traveled. A refund path that does not exist today is still a claim you can lose by failing to document it.
The $100,000 H-1B Payment in 2026: Key Questions Answered
The questions below are the ones we field most often, in the order employers and beneficiaries actually ask them.
Q1
Did the $100,000 H-1B fee expire in September 2026?
No. It was written to expire on September 21, 2026, but Proclamation 11069, signed September 18 and published September 23, 2026, extended the restriction for a further twelve months to September 21, 2027. Anyone who timed travel, a filing, or advice around the expiry should revisit that decision.
Q2
Do I have to pay the $100,000 right now?
On the reporting available, no. The policy implementing the payment was vacated on June 8, 2026 and the First Circuit declined to stay that ruling on July 24, 2026, so employers are not currently being required to pay when filing. Practitioner accounts also describe inconsistent handling of affected petitions, with some held and others approved without payment.
Treat that as the current operating position rather than a guarantee, and establish where your specific petition stands before you file or travel.
Q3
Did the court cancel the proclamation itself?
No, and this is the most consequential misreading in circulation. The district court vacated the agency policy that implemented the proclamation, not the proclamation. The First Circuit’s order records the holding as declaring the Policy implementing the Proclamation unlawful and vacating it under 5 U.S.C. § 706(2) in its entirety. The proclamation remains on the books and now runs to September 2027.
Q4
Does the payment apply to H-1B extensions, transfers, or a change of status filed inside the U.S.?
On the face of the instrument, no. Section 1(a) restricts entry and section 1(b) reaches petition decisions for beneficiaries currently outside the United States, so a case for someone who never needs to be admitted falls outside both limbs. That is a reading of the text rather than an agency pronouncement, and the entry-versus-petition trigger is worth confirming against your specific facts.
Q5
What is the $103,265 fee, and is it the same thing?
It is a separate and unrelated DHS proposal, published August 25, 2026 at 91 FR 54817, that would impose a $103,265 fee payable at filing on all cap-subject H-1B petitions, in addition to other applicable fees. It is a proposal only, nothing is owed, and its comment period closed September 24, 2026 with 11,706 comments. DHS must respond to those comments before it can finalize anything, and no timetable has been announced.
Q6
Will employers who already paid get a refund?
No order has established a refund mechanism. The vacatur stopped the policy prospectively; it did not direct that money be returned. Whether any restitution path exists is unresolved.
The practical step is documentary. Identify which collection window each payment falls in, preserve proof of payment, and record what happened to the underlying petition and beneficiary.
Q7
Could the $100,000 requirement come back?
Yes. The proclamation runs to September 2027 and the government’s appeal of the vacatur is pending. Because what was vacated is the implementing policy rather than the proclamation, a reversal would raise a further question about whether the agencies revive the old materials or issue new ones. Plan on the assumption that the position can change, and that it can change faster than a filing cycle.
Q8
What is Executive Order 14431, and does it affect my company?
Signed the same day as the proclamation and published at 91 FR 60501, it directs agencies to take account of whether a sponsoring employer has engaged in layoffs affecting similarly situated U.S. workers, and gives the Secretary of Labor, through the Wage and Hour Division, thirty days from September 18, 2026 to begin reviewing data on previously submitted labor condition applications. That is an internal review, not an employer filing obligation, and nothing is due from you on October 18. What changes is the probability of attention.
Q9
Why does the State Department website still say I have to pay?
Because it has not been updated. The Department’s page on the entry restriction still carries a last-updated date of September 21, 2025, still states the payment requirement without qualification, and mentions neither the court order nor the 2026 extension. If you are checking your own position online, you are reading a page that is a year behind the litigation.
Q10
I am outside the U.S. on an approved H-1B. Can I travel back?
The restriction is an entry condition, so the consulate and the port of entry are where it would be felt. With the implementing policy vacated, current reporting indicates it is not being applied — but your own facts, including when your petition was filed and approved, determine your exposure, and the litigation posture can shift while you are abroad.
When to Get Counsel: A Triage Checklist
You should book an in-person or video consultation today if any of the following apply to you:
- ✓ You or your company paid the $100,000 at any point since September 2025.
- ✓ You have an H-1B petition pending for a beneficiary currently outside the United States.
- ✓ A petition of yours appears to be sitting unadjudicated with no request for evidence.
- ✓ You are abroad with an approved H-1B and have travel booked in the next ninety days.
- ✓ You were advised to time an entry or a filing around the September 21, 2026 expiry.
- ✓ Your company has conducted layoffs in the past year and sponsors H-1B workers.
- ✓ You are budgeting FY2028 cap-season hiring and need a defensible cost assumption.
- ✓ You are an F-1 student weighing whether a change of status shields you from either charge.
How Can Kodem Law Help You?
The hardest part of this story is not the law. It is that the honest answer has two halves — the restriction is extended, the payment is not being collected — and most of what is published online carries only one of them. Employers are budgeting against headlines, beneficiaries are reading a government page that has not moved since September 2025, and the people who actually paid are being told in a single sentence that refunds are unresolved.
Kodem Law works the specifics: which limb of the proclamation your case touches, whether your filing sits inside or outside its reach, what the section 2(a) documentation duty requires of you regardless of the litigation, how to preserve a payment record while the refund question is open, and how to build a hiring plan that survives the posture changing. Where a case calls for it, we also litigate in federal court.
