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Second Federal Judge Strikes Down the $100,000 H-1B Fee: What the September 30 Ruling Means
A second federal judge has struck down the $100,000 fee on new H-1B workers, and with it the September 2026 proclamation that renewed it. U.S. District Judge Haywood S. Gilliam Jr. found the policies arbitrary and capricious and ruled they were legislative rules that required public comment first. In plain terms, the government cannot create a charge of this size through agency memos and guidance without asking the public. Once again, our EB-1A consultants have overviewed this important piece of news in great detail.
What the judge ordered
In Global Nurse Force v. Trump, Gilliam vacated the agency policies that put the fee into practice and barred their enforcement under Proclamation 10973 and its extension, Proclamation 11069, until notice-and-comment rulemaking and regulatory flexibility analyses are completed. He granted a preliminary injunction motion in part. The Rio Times' LatAm Brief notes that the ruling targets the paperwork behind the fee, not the president's proclamation itself. The case was the first filed against the fee. A coalition of labor unions, healthcare employers, faculty groups and religious organizations lodged it on October 3, 2025.
Why the judge ruled this way
The judge wrote that the agencies failed to consider any alternatives or the reliance interests of the affected parties, which made the policies arbitrary and capricious. Because the policies set binding obligations, they counted as legislative rules. That meant the public should have been allowed to comment, and it was not.
The government argued that employers had no standing to sue if they never asked for a “national interest” exception to the fee. The judge was unmoved. He noted that BAE, a Michigan manufacturer, requested an exception on November 14, 2025 and never got a response, and that a medical practice had waited almost a year for an answer. If indefinite delay could defeat a lawsuit, he reasoned, agencies could shield any policy from challenge simply by never acting. The September 2026 proclamation did not mention a single employer in the past year receiving such an exception.
The employers behind the case
The court record reads like a map of the American economy outside the tech sector. Nephrology Associates, a rural kidney practice, said nearly all its physicians have been on H-1B visas. After a nine-month search it received only ten applications, and one qualified candidate, a J-1 physician who returned to India. The practice could not afford the fee, had to delay care and now has a waitlist of about 100 patients.
Lower Brule Day School, a K–12 school on a Sioux reservation in South Dakota, got ten applications for two positions, all from foreign nationals needing H-1B sponsorship. Global Village Academy Collective, which runs three tuition-free language-immersion charter schools in Colorado, said state funding cannot cover even one fee.
A fee that worked as a ban
The September 18, 2026 proclamation itself revealed that the fee had effectively stopped new H-1B hiring, with employers paying it for only about 700 people. It extended the fee for another 12 months.
Second court, different theory?
The California ruling follows a June decision on a different legal ground. On June 8, 2026, a Massachusetts federal court vacated the fee policy, finding that the payment is a tax rather than an immigration restriction and that the president lacks authority to impose it. That ruling applied nationwide, in a case led by 20 states under California Attorney General Rob Bonta.
The First Circuit declined to stay it on July 24, and DHS said it is complying while stating that it “strongly disagrees.” Not every court has agreed: a Washington, D.C., federal court upheld the fee requirement in December 2025.
Legal commentator Ilya Somin of George Mason University notes that the new decision “does not have any immediate impact” because the earlier ruling already blocks the fee, but that a second court ruling on a different ground suggests appellate judges may come out the same way.
What it means for employers today
The $100,000 fee is inactive, and employers can keep recruiting without paying it. Ordinary H-1B costs, typically $2,000 to $5,000, still apply. Jesse M. Bless of IMMpact Litigation said that “no agency policy lawfully requires the payment.” Plaintiffs' attorney Charles Kuck of Kuck Baxter said the judge saw “blatant violations of the Administrative Procedure Act.”
What comes next
The legal fight is not over. Litigation is likely to continue, though the ruling makes it less likely the administration can reinstate the fee. The decision does not directly address a DHS proposed rule from August that would charge $103,265 on new cap-subject H-1B professionals, but several arguments in the case resemble criticisms filed against that rule.
For now, the practical message to employers is that the fee cannot be enforced, but the underlying policy dispute is unresolved. Anyone with a pending H-1B filing should check current USCIS guidance with an immigration attorney.
At GCEB1, our EB-1A experts are continuing to cover the latest updates and insights into the U.S. immigration landscapes. Get in touch with us to get personalized mentorship for merit based green cards. We wish you a safe and stress free immigration journey ahead.
Frequently asked questions
1. What did the judge decide on September 30, 2026?
Judge Haywood S. Gilliam Jr. vacated the agency policies enforcing the $100,000 H-1B fee and barred their enforcement until the agencies complete proper rulemaking.
2. Does this ruling end the $100,000 fee for good?
No. Litigation is likely to continue, but the ruling makes reinstatement less likely.
3. Do employers have to pay the fee right now?
No. Two court rulings currently block enforcement, so employers sponsoring H-1B workers need not include the $100,000 payment while the orders stand.
4. Why did the judge call the policies “arbitrary and capricious”?
Because the agencies failed to consider alternatives or the reliance interests of employers affected by the fee.
5. What is notice-and-comment rulemaking?
It is the process under the Administrative Procedure Act that lets the public submit comments before a binding rule takes effect.
6. How is this different from the June ruling in Massachusetts?
The June decision found that the fee is an unlawful tax beyond presidential power. The California decision rests mainly on the agencies' failure to follow the Administrative Procedure Act.
7. Did the government appeal?
The government appealed the June ruling, and the First Circuit declined to pause it on July 24.
8. What is the $103,265 H-1B fee proposal?
It is a DHS proposed rule from August that would impose a fee on new H-1B professionals subject to the annual limit. The California ruling does not directly address it.
9. Which employers were hurt by the fee?
Plaintiffs include a nurse staffing agency, a rural kidney practice, a South Dakota reservation school and language-immersion charter schools in Colorado.
Sources & further readings
- Anderson, Stuart. “Judge Strikes Down Latest Version Of $100,000 H-1B Immigration Fee.” Forbes, October 1, 2026. https://www.forbes.com/sites/stuartanderson/2026/10/01/judge-strikes-down-latest-version-of-100000-h-1b-immigration-fee/
- Democracy Forward. “Second Federal Court Blocks Trump-Vance Administration's Unlawful Innovation Ban.” Press release. Accessed October 2, 2026. https://democracyforward.org/news/press-releases/second-federal-court-blocks-trump-vance-administrations-unlawful-innovation-ban/
- EB5Investors.com. “Second Court Blocks Trump's $100,000 H-1B Visa Fee.” Accessed October 2, 2026. https://www.eb5investors.com/blog/second-court-blocks-trumps-100000-h-1b-visa-fee/
- Immigration Analytics. “Federal Court Vacates $100K H-1B Fee Policies in Global Nurse Force v. Trump.” October 1, 2026. https://immigration-analytics.com/2026/10/01/federal-court-vacates-100k-h-1b-fee-policies-in-global-nurse-force-v-trump/
- The LatAm Brief. “H-1B Visa Fee: US Judge Blocks Trump's US$100,000 Charge on New Hires.” Rio Times. Accessed October 2, 2026. https://riotimesonline.com/us-judge-suspends-100000-h1b-visa-fee-2026
- Ogletree Deakins. “Federal Court Vacates $100,000 H-1B Fee Requirement.” June 2026. https://ogletree.com/insights-resources/blog-posts/federal-court-vacates-100000-h-1b-fee-requirement/
- Somin, Ilya. “Second Federal Court Rules Against Trump's $100,000 H-1B Visa Fee.” Reason (The Volokh Conspiracy), October 1, 2026. https://reason.com/volokh/2026/10/01/second-federal-court-rules-against-trumps-100000-h-1b-visa-fee/
- VisasUpdate. “Second Federal Court Blocks Trump's $100,000 H-1B Fee: California Judge Issues Preliminary Injunction.” Accessed October 2, 2026. https://www.visasupdate.com/post/100000-h1b-fee-blocked-california-court-2026
