India accounts for the highest share of H‑1B visa approvals, representing roughly 70% to 73% of all approved beneficiaries each year.
A three‑judge panel of the First Circuit Court of Appeals rejected the administration’s emergency request to maintain the $100,000 fee while the appeal proceeds.
The ruling leaves in place the district court decision that vacated the fee, citing that it exceeded executive authority and was unconstitutional under the Administrative Procedure Act.
The fee was introduced by a proclamation aimed at curbing abuse of the H‑1B program, addressing concerns that employers were replacing U.S. workers with lower‑paid foreign labor, thereby depressing wages and undermining national security.
Under the fee, new H‑1B petitions filed outside the United States required a $100,000 payment, with limited exceptions for national‑interest cases, and the policy was implemented through fee schedules and guidance documents.
Twenty states sued, arguing the fee would impede staffing of public colleges, universities, schools, and healthcare systems.
The district court agreed with the plaintiffs and vacated the policy entirely.
The administration sought a stay to keep the fee in effect pending appeal; the district court granted only a temporary pause, and the First Circuit rejected the request.
The panel held that the administration failed to demonstrate a strong likelihood of success, focusing on the fee as an unauthorized tax‑like burden lacking congressional delegation, while citing statutory authority that permits restriction of alien entry deemed detrimental to U.S. interests.
The fee was intended to compel employers to value American talent instead of using the visa system as a cheap labor pipeline.
