On September 30, 2026, Judge Haywood S. Gilliam Jr. of the U.S. District Court for the Northern District of California blocked federal agencies from enforcing or implementing the policies used to administer the $100,000 supplemental H-1B fee.
The order in Global Nurse Force v. Trump, No. 4:25-cv-08454 (N.D. Cal.), represents the second significant federal court setback for the fee. The ruling gives employers immediate relief. It also leaves the legal and operational status of future H-1B filings subject to continued litigation and possible rulemaking.
What the September 30 ruling decided
The court vacated and remanded the agency policies that implemented the $100,000 payment requirement. The affected agencies include U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), and the Department of State.
The court also enjoined federal agencies from enforcing or implementing those policies unless and until the agencies complete:
- Notice-and-comment rulemaking under the Administrative Procedure Act (APA); and
- Regulatory Flexibility Act analysis.
The court declined to require a bond. It also denied the government’s request for a stay pending appeal.
The decision did not resolve every legal challenge to the fee. In particular, the court did not decide whether the President exceeded statutory authority under INA § 212(f), 8 U.S.C. § 1182(f), or whether the fee constituted an unconstitutional tax. The decision rested on administrative-law violations.
The full order is available through GovInfo.
Background: How the $100,000 H-1B fee arose
Presidential Proclamation 10973, issued in September 2025, required employers to make a $100,000 supplemental payment when filing certain new H-1B petitions. The policy primarily affected workers located outside the United States.
Presidential Proclamation 11069, issued on September 23, 2026, extended the earlier proclamation through September 2027.
Federal agencies then issued guidance and operational instructions concerning:
- Which petitions were subject to the payment;
- How employers were required to submit the payment;
- How consular processing and admission would be affected; and
- How USCIS, CBP, and the Department of State would administer the requirement.
The Global Nurse Force plaintiffs challenged those implementing policies. The court concluded that the agencies could not create and enforce such substantive requirements without following the APA’s rulemaking procedures.
The court’s APA reasoning
The agency policies functioned as legislative rules
The court found that USCIS, CBP, and the Department of State created substantive policies that operated as legislative rules. Those policies imposed significant financial and procedural obligations on employers and foreign workers.
The agencies implemented the requirements without notice-and-comment rulemaking. The court found that no applicable exception excused the agencies from that process.
This distinction is important. Agencies may issue interpretive guidance in appropriate circumstances. They may not use guidance to establish new binding obligations with substantial practical and financial consequences without complying with the APA.
The policies were arbitrary and capricious
The court also found that the agency policies were arbitrary and capricious. The agencies failed to demonstrate reasoned decision-making in several respects.
The court identified concerns involving:
- The agencies’ failure to consider alternatives to the implementation framework;
- The failure to address employers’ reliance interests;
- The lack of adequate explanation concerning how the fee would operate;
- The effect on employers, healthcare organizations, educational institutions, and workers; and
- The absence of a sufficiently reasoned explanation for the agencies’ approach.
The court therefore vacated the policies and remanded them to the agencies.
What the ruling means for employers now
The $100,000 supplemental H-1B payment is not currently enforceable or collectible under the blocked agency policies.
Employers filing H-1B petitions should take the following steps.
1. Do not remit the $100,000 supplemental payment
Employers should not include the $100,000 payment with an H-1B petition while the injunction remains in effect.
The payment requirement should not be treated as an additional filing fee under the current filing framework. Employers should continue using the applicable standard USCIS fee structure.
2. Confirm the correct standard filing fees
Employers must still submit every required filing fee for the specific petition and requested benefit. USCIS may reject a petition that includes an incorrect or incomplete standard fee.
Employers should review the current USCIS filing fee schedule before submitting any petition. Fee amounts and filing procedures can change independently of the $100,000 litigation.
3. Review pending filings and internal instructions
Employers should review:
- H-1B petition checklists;
- Outside counsel instructions;
- Accounts-payable procedures;
- Global mobility budgets;
- Vendor communications; and
- Internal guidance issued after Proclamation 10973.
Any instruction requiring the $100,000 supplemental payment should be updated unless a later court order or valid agency action changes the current position.
4. Preserve documentation
Employers should maintain records showing:
- The filing date;
- The petition classification;
- The worker’s location at the time of filing;
- The fee calculation;
- The standard fees submitted; and
- The legal guidance relied upon.
These records support audit readiness and help address future agency questions or changes in litigation status.
5. Coordinate with immigration counsel before filing
Employers should obtain a case-specific review when a petition involves:
- A worker outside the United States;
- Consular processing;
- A change in worksite or employment structure;
- A related visa application;
- A prior payment of the supplemental fee; or
- A pending request for evidence or other agency notice.
A business immigration attorney can evaluate whether another legal or procedural issue affects the petition.
What the ruling does not change
The September 30 order does not eliminate other H-1B requirements or general employment-immigration obligations.
The $103,265 proposed H-1B fee is separate
Employers must not confuse the blocked $100,000 payment with the separate Department of Homeland Security proposed rule that would establish a $103,265 fee for cap-subject H-1B petitions.
That proposal proceeded through a separate APA rulemaking process. The comment period closed on September 24, 2026. The proposal is not the same proceeding as Global Nurse Force and is not automatically invalidated by the September 30 order.
Employers should not assume that the proposed $103,265 fee is final or currently payable unless DHS issues a final rule with an effective date and filing instructions.
Standard H-1B petition requirements remain in place
Employers must continue to establish all ordinary H-1B requirements, including:
- A qualifying specialty occupation;
- A bona fide employer-employee relationship;
- The required wage obligations;
- A certified Labor Condition Application, when required;
- The beneficiary’s qualifications;
- Proper filing fees; and
- Compliance with applicable status, admission, and employment restrictions.
The ruling does not create a new work visa for foreign employees. It only blocks the challenged supplemental payment policies.
Form I-9 and E-Verify obligations remain unchanged
The ruling does not change Form I-9 requirements, employment authorization verification, or anti-discrimination obligations.
Employers must continue completing Form I-9 within the required deadlines. They must apply document rules consistently and must not request specific documents based on citizenship or national origin.
On October 2, 2026, USCIS released new E-Verify+ Employer and Employee Guides. The materials address:
- Case creation;
- Form I-9 review;
- Updating employee information; and
- Receipts for lost, stolen, or damaged Form I-9 documents.
These materials are relevant to workforce compliance and I-9 recordkeeping. They do not modify the current H-1B fee injunction.
The second judicial setback for the fee
The September 30 ruling follows a separate decision in State of California v. Mullin, Civil No. 25-13829-LTS (D. Mass.).
On July 24, 2026, the U.S. Court of Appeals for the First Circuit denied the government’s motion to stay the District of Massachusetts order that had vacated the $100,000 fee policy nationwide. The First Circuit’s order is available here.
As a result, the government has faced two separate federal court setbacks:
- The District of Massachusetts vacated the fee policy nationwide.
- The First Circuit declined to stay that judgment.
- The Northern District of California separately blocked the agency policies implementing the fee.
The September 30 decision strengthens the conclusion that the fee cannot currently be collected under the existing implementation framework. It does not guarantee that the issue is permanently resolved.
Planning considerations for FY2027
Employers should continue planning for the FY2027 H-1B cap season. The registration period is expected to begin in March 2027, with a wage-weighted selection process.
Employers should prepare by:
- Identifying potential cap-subject employees;
- Reviewing position descriptions and wage levels;
- Confirming worksite and employment details;
- Evaluating foreign national employees who may require consular processing;
- Budgeting for standard government filing fees and legal services;
- Monitoring final action on the proposed $103,265 fee; and
- Establishing a process for rapid response to new USCIS instructions.
USCIS also announced inflation-adjusted increases to certain immigration-related filing fees effective October 1, 2026. Employers should verify the fee applicable to each filing rather than relying on older checklists.
USCIS has also authorized employment-based adjustment-of-status applicants to use the Dates for Filing chart for October 2026. Employers sponsoring foreign nationals for permanent residence should review the applicable Visa Bulletin category and filing chart before preparing an adjustment package.
Litigation remains fluid
The government may appeal the Global Nurse Force order. It may also pursue new APA rulemaking after completing the required notice-and-comment process and Regulatory Flexibility Act analysis.
Employers should therefore avoid treating the current result as a permanent repeal of the fee. They should instead use a contingency-based compliance plan:
- File under the current enforceable fee structure.
- Do not pay the $100,000 supplemental amount while the injunction remains effective.
- Maintain documentation supporting each filing decision.
- Monitor appellate orders, USCIS updates, Department of State guidance, and any proposed or final rule.
- Reassess pending petitions if the government obtains a stay or issues a new lawful rule.
Employers should not make filing or hiring decisions based solely on general online summaries.
Consult Blasingame Law LLC
The H-1B visa 2026 landscape remains subject to litigation, agency action, and changing fee requirements. Employers need coordinated advice covering petition strategy, workforce planning, I-9 obligations, and workforce compliance.
Blasingame Law LLC provides personalized business immigration representation for employers of all sizes. The firm has more than thirty years of experience in corporate and private immigration practice and assists with H-1B petitions, employment-based immigration, HR immigration solutions, compliance reviews, and complex cases.
To discuss an H-1B filing or workforce compliance matter, contact Blasingame Law LLC:
- Phone: 719-521-2115
- Email: info@blasingamelaw.com
- Office: 2930 N. Academy Blvd, Ste 204, Colorado Springs, CO 80917
- Business Immigration Solutions
- Schedule a Consultation
This article provides general information current as of October 2026. It does not constitute legal advice. A qualified immigration lawyer should review the specific facts before an employer files an H-1B petition or changes its immigration compliance procedures.
