The $100,000 H-1B fee in November 2026: who it covers, the court orders, and what employers should do

As of November 2026, U.S. Citizenship and Immigration Services (USCIS) is not collecting the $100,000 H-1B payment. A September 19, 2025 presidential proclamation created it for new H-1B petitions, and a September 18, 2026 proclamation extended it to September 21, 2027, but a federal court in Massachusetts vacated the agencies' implementing policy on June 8, 2026, the First Circuit refused to pause that ruling, and a federal court in California on September 30, 2026 barred the agencies from enforcing their policies under both proclamations until they complete notice-and-comment rulemaking. DHS says it still plans to collect the payment if the orders are lifted, and it has separately proposed a $103,265 fee for cap-subject petitions by regulation.

This page follows the payment from the employer's side: who it would cover, how it would be paid, what the courts have done and what a recruiter can say to a candidate. For the Form I-9 steps when an H-1B worker starts, see Form I-9 for H-1B workers; for the two questions you may ask about sponsorship, see work authorization questions in interviews; for posting wording, see visa sponsorship language in job postings; and for the year's other federal changes, see new hiring laws for 2027.

Is the $100,000 H-1B payment being collected now?

No. USCIS's H-1B page says that after the First Circuit denied the government's stay request on July 24, 2026, DHS "will comply with the court's order while DHS considers next steps," and that if the order is later lifted, DHS still plans to collect the payment. Since then a second court has blocked the policies under the extended proclamation too. The sequence, from the primary records:

The Massachusetts court treated the payment as a tax that sections 212(f) and 215(a) of the Immigration and Nationality Act do not let the President impose; the D.C. court reached the opposite result. The California order notes that both of those cases are going through further review. In the records we checked on November 9, 2026, we found no merits decision from either court of appeals and no final rule on the $103,265 proposal. Build your plans around the current state of the orders, not around a guess about how the appeals end.

Who would the payment cover if it is enforced again?

USCIS's description of the 2025 proclamation, which the 2026 proclamation repeats in its section 3(a), turns on where the worker is and what the petition asks for, not on the employer's size or whether it is cap-exempt:

USCIS also says the proclamation does not stop a current H-1B visa holder, or a worker whose petition was approved, from traveling in and out of the country. For the employer steps in the two most common in-country cases, see H-1B transfer hiring and H-1B cap-gap for employers. The proclamations cover only H-1B specialty occupation workers; they do not reach O-1, TN, L-1 or H-2B petitions. See O-1 visa hiring and TN visa hiring for the alternatives employers ask about most.

Is there an exception?

Section 1(c) of each proclamation lets the Secretary of Homeland Security exempt an individual, all workers at a company, or all workers in an industry when hiring them is in the national interest and poses no security threat. USCIS describes these as granted only in the "extraordinarily rare circumstance" where the Secretary finds that the worker's presence is in the national interest, that no American worker is available, that the worker poses no threat, and that requiring the payment would significantly undermine U.S. interests. Requests and evidence go to the DHS email address listed on the USCIS H-1B page, and evidence of a granted exception must be filed with the petition.

How would an employer pay, and can the cost be passed to the worker?

• Before filing. USCIS directs payment through pay.gov ("H-1B Visa Payment to Remove Restriction") and requires proof that it has been scheduled, or proof of an exception, with Form I-129. It says petitions subject to the payment and filed without either will be denied.
• Records. Section 2(a) of each proclamation tells employers to obtain and keep documentation of the payment before filing for a worker outside the United States.
• Who pays. The proclamations speak of the payment the "prospective employer" makes. The Labor Department's H-1B wage rules treat the costs of preparing and filing the labor condition application and petition as employer business expenses that cannot be recouped from the required wage (20 CFR 655.731(c)(9)), and forbid the worker from paying any part of the ACWIA training fee (655.731(c)(10)(ii)). Neither rule names this payment, so ask counsel before recovering any of it from a worker.

Three other costs are easy to confuse with it. The 9-11 Response and Biometric Entry-Exit Fee is $4,000 per H-1B petition for "covered employers" with 50 or more U.S. employees, more than half of them in H-1B or L status; a final rule effective September 9, 2026 applies it to extension petitions too. The $103,265 fee is only a proposal. And from November 9, 2026, USCIS accepts only the 09/09/26 edition of Form I-129; regular filing fees are on the G-1055 fee schedule.

What should recruiters and hiring managers do now?

1. Ask every candidate the same two questions: whether they are authorized to work in the United States, and whether they will now or in the future need sponsorship for an employment visa. Nothing more about status in the interview.
2. Hand sponsorship cases to counsel early. Let counsel, not the interviewer, collect the immigration details. The payment turns on where the worker is at filing, what the petition requests and whether the worker already holds a valid H-1B visa.
3. Price two scenarios with finance, one with the payment and one without, and agree who signs off if it returns before your filing date.
4. Make start dates conditional on petition approval and on counsel confirming the filing requirements that day. Do not promise a date to a candidate abroad.
5. Do not ask the candidate to pay or reimburse any part of the payment without counsel's sign-off, for the reasons above.
6. Staffing and IT services firms: the 2026 proclamation names IT staffing and outsourcing firms in its findings, and Executive Order 14431 tells State, Labor and DHS to take into account whether a sponsor laid off similarly situated U.S. workers in the previous year or plans to. Check whether you are a covered employer for the 9-11 fee.
7. Re-check on filing day the USCIS H-1B page, the Federal Register and the court orders, and keep a note of what you relied on.

What can you tell a candidate?

Keep it factual and short. An example a recruiter can adapt:

Recruiter: This role can be sponsored for H-1B. You may have read about
a $100,000 payment. Right now USCIS is not collecting it because of
court orders, but that could change, and whether it would apply
depends on how the petition is filed. If it applies, it is the
employer's to make. Our immigration counsel will confirm the
requirements before we file, and your start date will depend on the
approval. Counsel will contact you for anything they need.

Notice what the script leaves out: no question about nationality or visa history, and no promise about the courts. If a candidate volunteers immigration details, keep them out of the interview notes that go to the hiring decision.

Which other H-1B changes affect the same hire?

Proposed rules change nothing until a final rule is published. For PERM-based green card cases that may follow an H-1B, see PERM recruitment requirements.