By
Herman Legal Group • Updated September 23, 2026
Court status, the separate proposed fee, and what employers should check for new petitions, extensions, transfers, and changes of status.
Short answer (September 23, 2026): Employers should not treat the proclamation’s $100,000 H-1B payment as a current USCIS filing charge. A federal court vacated the agency actions implementing that payment on June 8, and the First Circuit denied the government’s request to stay that judgment on July 24. The September 18 proclamation extended the stated entry restriction to September 21, 2027, but did not itself reverse the court order. A separate $103,265 fee is only proposed; it has not become a filing requirement. Ordinary H-1B filing fees still apply. Confirm the latest USCIS Form I-129 instructions and fee schedule immediately before filing because further court or agency action could change this answer.
By Richard T. Herman, Esq., founder of Herman Legal Group. Learn about Richard’s experience and credentials.
This guide is part of Richard’s Immigration Resource Center. For petition requirements, see our H-1B visa guide. For representation, explore our H-1B legal services for employers and workers.
What changed, and which rule applies now?
| Development | Practical status on September 23, 2026 |
|---|---|
| $100,000 proclamation payment | The September 18 extension continues the proclamation’s stated restriction through September 21, 2027. The agency actions implementing its payment have been vacated. |
| Court order | The First Circuit’s July 24 order denied a stay pending appeal. It addressed the implementing agency actions, not a final merits decision on every possible future policy. |
| Proposed $103,265 fee | DHS published a notice of proposed rulemaking for cap-subject petitions. It is a different measure and is not yet in effect. Comments are due September 24. |
| Regular petition fees | Applicable Form I-129 and other ordinary fees remain due. Use the current USCIS fee schedule for the actual case. |
Does the September extension restore the $100,000 payment?
The proclamation and the court ruling address different legal acts. The President extended the proclamation’s entry restriction. The district court vacated the actions DHS and the Department of State took to implement the payment, and the court of appeals refused to suspend that judgment while the appeal proceeds. An extension of the proclamation does not automatically reinstate vacated agency implementation. Employers should watch for a new stay, an appellate decision, or new agency instructions rather than infer a payment obligation from the extension alone. For the controlling appellate action discussed here, read the First Circuit’s July 24 order.
What about my planned petition?
Hiring a worker who is abroad. This is the situation the proclamation principally targeted. The current vacatur affects the implementing payment actions, but counsel should review the latest filing and consular instructions before filing or arranging travel. Being cap-exempt did not, by itself, decide the earlier proclamation question.
F-1 student already in the United States requesting change of status. A properly requested and approved change of status is different from a consular case seeking entry. Review the person’s actual status and requested action; international travel before approval can change the posture. See our F-1 and H-1B guide.
Existing H-1B worker changing employers. “Transfer” is shorthand for a new employer petition. The label alone does not answer every fee or travel question. Confirm whether the worker is in the United States, what the petition requests, and whether consular processing or travel is involved. Our H-1B portability guide covers the separate work-authorization issue.
Extension or amendment. The same case-specific review matters, including the worker’s location, the requested action, and any change to consular processing. Do not add a six-figure payment merely because an employer files Form I-129; do pay applicable ordinary filing fees.
University or other cap-exempt employer. Cap exemption is relevant to the proposed $103,265 cap-subject fee. It was not a blanket exception from the proclamation as written. Check cap-exempt eligibility separately from the worker’s location and processing route.
Is the proposed $103,265 fee already payable?
No. The August 25 DHS proposal would impose a $103,265 fee at filing for cap-subject H-1B petitions, including advanced-degree-exemption cases, in addition to other applicable fees. It has a separate legal basis and scope from the proclamation payment. The notice was corrected on September 10; consult the published notice and correction when assessing its terms. A proposal does not authorize USCIS to collect the amount today. If DHS finalizes it, its final text and effective date will control.
Who pays, and what happens to payments already made?
Employers file H-1B petitions and are responsible for assessing and paying required petition charges under the applicable rules. The vacatur does not itself establish an automatic refund for a prior $100,000 payment. Employers that paid should retain the receipt, petition record, and agency correspondence and seek individualized advice about any available refund process or litigation remedy. We have not identified a general USCIS refund instruction for those payments as of this update.
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Frequently asked questions
Is USCIS collecting the $100,000 H-1B payment now?
As of September 23, 2026, the agency actions implementing it remain vacated after the First Circuit denied a stay. Confirm current USCIS instructions immediately before filing.
Does the September 2026 proclamation extension undo the court ruling?
No. The extension continues the proclamation’s stated restriction through September 21, 2027, but it does not itself stay or overturn the judgment concerning the agency’s implementation.
Is every H-1B transfer or extension exempt from every new fee?
No. Ordinary fees may apply. The worker’s location, requested action, cap status, and processing route also matter if the six-figure policies change.
Is the $103,265 proposed fee the same as the $100,000 payment?
No. The $103,265 measure is a separate proposed DHS rule for cap-subject petitions and is not currently effective.
Sources and author
Primary sources: First Circuit order (July 24, 2026); September 18 proclamation; DHS proposed rule; USCIS Form I-129 page and fee schedule.
By Richard T. Herman, Esq., founder of Herman Legal Group and immigration attorney with more than 30 years of experience. Learn why clients trust the firm. This general guide is dated September 23, 2026; a case’s governing instructions may change before its filing date.
