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Following our initial report on the U.S. District Court for the District of Massachusetts striking down the controversial $100,000 supplemental H-1B fee for consular processing, the legal landscape has rapidly evolved. While the original June 8 District Court ruling declared the executive branch proclamation an unlawful tax, the practical reality of that order was temporarily paused by an administrative stay. Taking advantage of that window, the federal government escalated the matter on June 18 and filed an emergency motion to stay the judgment in the First Circuit Court of Appeals, arguing that halting the collection of the fee immediately would cause irreparable harm to agency operations while the broader appeal is litigated.
On Friday, July 24, 2026, a three-judge panel for the First Circuit officially denied the government’s emergency motion. The appellate court determined that the government failed to make a strong showing that it was likely to succeed on the merits of its appeal regarding whether the agency acted in excess of its statutory authority. The court emphasized that when the executive branch claims discretionary authority to impose monetary financial burdens on regulated parties, Congress must explicitly and clearly delegate that authority. Because the Immigration and Nationality Act does not expressly grant this fee-imposing power under the statutes relied upon by the administration, the First Circuit declined to keep the $100,000 fee in place while the appeal proceeds.
Because the First Circuit denied the government’s request, the district court’s original order vacating the policy is reinstated nationwide. This bars U.S. Citizenship and Immigration Services from enforcing or collecting the $100,000 requirement at this time.
This victory may be short-lived, however. Given the conflict between this Massachusetts ruling and the decision out of the D.C. District Court last year that upheld the Presidential Proclamation imposing the fee, the circuit split suggests the constitutional question is bound for the Supreme Court. The government is expected to file an emergency application for a stay with the Supreme Court. Under the Court’s emergency shadow docket procedures, the Justices could potentially issue a ruling on the stay as soon as today, Monday, July 27.
We are monitoring the Supreme Court docket and will issue an alert if emergency intervention alters the enforceability of the fee yet again.
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