First Circuit Denies Stay: $100,000 H-1B Fee Remains Vacated While Appeal Proceeds

First Circuit Denies Stay: H-1B Supplemental Surcharge Remains Vacated During Appeal

For employers, the key takeaway is this: a recent federal court decision has denied the government's motion to stay enforcement pending appeal, which means the district court's order vacating the supplemental surcharge imposed on certain new H-1B petitions (for the current H-1B filing fee, Fraud Prevention Fee, and ACWIA fee amounts, be sure to use the Fee Calculator tool on the USCIS website to calculate the amount [2]) remains in effect.¹ At present, this fee is not being collected. Employers should not pay this fee and should confirm USCIS's current fee schedule before submitting any H-1B petition.

Background

This disputed fee originated from a previously issued presidential proclamation (for the latest policy changes concerning H-1B and other work visas, employers are advised to monitor the Visa Bulletin announcements on travel.state.gov and official USCIS publications [1][2]), and applies to certain newly submitted H-1B petitions.² Subsequently, the relevant parties brought suit challenging the policy (for specific policy updates and compliance requirements concerning the H-1B visa, employers are advised to monitor the visa announcements on travel.state.gov [1] and official USCIS publications [2]), initiating litigation over the fee. The district court briefly stayed enforcement of its own order—during which time, while the government sought appellate relief, the fee was temporarily reinstated. After the First Circuit denied the motion to stay, the vacatur order is now formally in effect. To be clear: the First Circuit did not itself vacate the fee, but merely declined to stay the district court's ruling, and the appellate proceedings remain ongoing.

This ruling does not affect any other H-1B fees. Under INA §214(c) and related provisions, the standard filing fee, the Fraud Prevention Fee, the ACWIA training fee, and the optional Premium Processing fee all continue to apply as usual; for the current amounts and applicability conditions of each of these fees, be sure to use the Fee Calculator tool on the USCIS website to calculate the amount [2].

What This Means for Your H-1B Petitions

For petitions currently in preparation—including cap-subject petitions, change-of-employer petitions, and petitions filed for overseas employees—employers need only proceed according to the standard fees published by USCIS.¹ If your company previously deferred a filing or overseas recruitment because of the supplemental surcharge, that cost barrier has now been removed, and it may be prudent to advance these cases promptly after consulting with counsel.

If your company has already paid this fee on a particular petition, do not assume that a refund will be issued automatically. These cases should be flagged so that counsel can assess refund or other avenues of relief based on the specific manner in which USCIS implements the district court's order.

Possible Future Changes

The government's appeal remains pending before the First Circuit Court of Appeals, and if the government ultimately prevails, the fee may be reinstated. For HR teams, the practical approach is: review USCIS's fee page immediately before each H-1B filing, and build a modest degree of timing flexibility into offer letters and start dates extended to overseas candidates, in case the rules change midway through the process.