Calling the policy a tax that required Congressional approval, a federal judge blocked President Donald Trump’s $100,000 application fee on employers attempting to hire skilled foreign workers on H-1B visas.
While the Trump administration is likely to appeal, the ruling blocks the fee nationwide for now. This provides a window of opportunity for employers – many technology and health care employers frequently use H-1B visas to bring in new employees for up to six years — to hire foreign workers without paying the high fees. Before President Trump instituted his fee, application fees were generally under $5,000.
U.S. District Judge Leo Sorokin of the United States District Court of the District of Massachusetts agreed with the 20 states that filed a lawsuit over President Trump’s fee, saying it violated the federal Administrative Procedure Act and the Constitution, which calls for separation of powers.
The states claimed the fee made it much more difficult for them to hire qualified workers at publicly run institutions, such as colleges and hospitals. In his surprise September 2025 proclamation announcing the fee, President Trump said employers were abusing H-1B visas, using them to hire foreign workers for lower wages than they would pay workers from the United States.
Ruling References U.S. Supreme Court Decisions
Sorokin’s ruling contradicts an earlier ruling by a federal judge in Washington, D.C. in a similar lawsuit brought by the U.S. Chamber of Commerce. Judge Beryl Howell of the U.S. District Court of the District of Columbia ruled the fee fell under President Trump’s broad powers to regulate immigration, but that ruling came before the U.S. Supreme Court ruled in February that Trump’s global tariffs required direct approval by Congress, a ruling Sorokin cited in his decision, along with a Supreme Court ruling on the Affordable Care Act that the mandate for U.S. citizens to obtain health insurance was a tax that required direct Congressional approval.
Sorokin, citing the decision on tariffs, noted that “Indeed, the Supreme Court recently found that tariffs assessed by DHS amount to taxes for the purposes of the Constitution’s Taxing Clause.”
Employers Presented with Opportunity
The H-1B visa program has existed for more than 35 years and is capped nationally at 85,000 visas per year, with 20,000 visas reserved for workers with advanced degrees. The cap does not apply to nonprofits and higher education institutions.
As we noted in a previous legal alert, President Trump’s surprise announcement sent companies scrambling and some decided to pause participation in the H-1B visa program. Much was unclarified at the time, causing panic. About a month later, the administration issued guidance on the topic. Still, according to the Trump administration in a March court filing, only 85 employers had paid the $100,000 application fee as of February 15, 2026.
Should Employers File Now — or Wait for a Stay?
The natural question for employers is whether to file H-1B petitions immediately or hold off until the appellate dust settles. The answer depends largely on risk tolerance and the type of petition involved.
The case for moving now is straightforward: as long as Judge Sorokin’s injunction remains in effect, petitions are not subject to the $100,000 fee, and there is no telling how long that window stays open. The administration is expected to seek a stay — potentially on an emergency basis from the First Circuit Court of Appeals or even the U.S. Supreme Court — and a stay could reinstate the fee with little warning. Employers who file while the injunction holds have at least a strong argument that their petitions were properly filed without the fee, particularly because the fee burden generally attaches at the time of filing.
The case for caution is the flip side of that uncertainty. If a higher court stays the ruling, it is not yet clear how U.S. Citizenship and Immigration Services would treat petitions filed during the injunction but still pending at adjudication. USCIS could, in theory, issue guidance or requests for evidence seeking the fee on petitions caught in that gap. Until the agency clarifies its position, that retroactivity risk cannot be fully ruled out.
For most employers, the practical calculus turns on who can actually file right now. Cap-exempt employers — nonprofits, institutions of higher education and their affiliated or related entities — can file year-round and are best positioned to act on this window immediately. The same is true for petitions involving current H-1B workers, including extensions, amendments and change-of-employer (portability) petitions, which are not tied to the annual cap. By contrast, employers seeking to hire new cap-subject workers generally cannot file outside the regular registration cycle, so for them the more pressing question is whether the fee will still be in place when the next registration period opens.
Our recommendation for eligible employers is to evaluate pending and near-term filings now, rather than assume the window will remain open. Premium processing can also help secure adjudication while the injunction is in effect. Employers should weigh the modest risk of post-stay fee exposure against the certainty of the $100,000 charge if the fee is reinstated before they file.
Sorokin’s ruling is obviously big news and Harris Beach Murtha’s Immigration Practice Group will follow appeals and other developments on this and other immigration topics. If you are an employer looking to take advantage of this window and hire workers on H-1B visas, please reach out to attorney L.J. D’Arrigo at (518) 701-2770 and ldarrigo@harrisbeachmurtha.com or the Harris Beach Murtha attorney with whom you most frequently work.
This alert is not a substitute for advice of counsel on specific legal issues.
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