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Following the First Circuit Court of Appeals' July 24 decision denying the federal government’s emergency stay, U.S. Citizenship and Immigration Services (USCIS) has formally updated its official H-1B guidance to reflect the ruling.
In a formal alert published on its website, the Department of Homeland Security (DHS) confirmed that it will comply with the court’s order and will not enforce or collect the $100,000 supplemental payment for affected H-1B petitions while the vacatur remains active. DHS still made a point to explicitly state on the record that it strongly disagrees with both the District Court’s underlying vacatur and the First Circuit’s refusal to grant a stay pending appeal. The alert includes a direct warning that if the order is later lifted, DHS still plans to collect the payment.
This official agency update provides clarity for employers navigating upcoming filing deadlines or active Requests for Evidence (RFEs). Employers can now submit affected H-1B petitions and RFE responses without attaching proof of a $100,000 pay.gov payment or requesting an exception. Adjudicators are now bound by agency guidance to process these filings without demanding the fee.
Despite this guidance, DHS’s statement that it intends to collect the fee if the court order is lifted signals that the administration may attempt retroactive collection or issue demand notices if the decision is later reversed on appeal. Furthermore, the Department of Justice is widely anticipated to seek emergency intervention from the U.S. Supreme Court. If the Supreme Court grants a stay on its shadow docket, USCIS could reinstate the payment requirement with virtually no advance notice.
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