The $100,000 H-1B Fee: 211,600 Registrations, 3 Lawsuits and a 13-Month Ledger

The $100,000 H-1B fee was enforceable for about 10 months and is now blocked by two federal courts. In the first lottery run after it took effect, USCIS counted 211,600 properly submitted registrations for FY 2027, down about 38% from 343,981 a year earlier. The H-1B $100,000 fee did not act alone on that number, and the part most coverage skips is who it never reached.

What the $100,000 H-1B fee actually requires

The fee is not a filing fee in the legal sense. Proclamation 10973, signed on 19 September 2025, restricts the entry of H-1B workers "except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000". It took effect at 12:01 a.m. Eastern on 21 September 2025 and was set to expire after 12 months unless extended.

That design choice matters more than the dollar figure. The proclamation rests on the President's power to restrict entry, not on the fee-setting statute that funds USCIS. Every lawsuit since has turned on whether a $100,000 payment can count as an entry restriction at all.

The USCIS implementing guidance narrowed the reach sharply. The payment applies to petitions for beneficiaries who are outside the United States and hold no valid H-1B visa. It also applies where the petition asks for consular notification, port of entry notification or pre-flight inspection. Employers paid through pay.gov before filing, and petitions filed without proof of payment were to be denied.

Summarised from the USCIS H-1B Specialty Occupations page, last updated 21 September 2026. National interest exceptions exist but, in the guidance's own words, are granted only "in the extraordinarily rare circumstance" the Secretary approves one.

Read that table as a hiring map. The fee follows where your candidate is standing on the day you file, not their nationality, seniority or field. In my view this is the single most misunderstood fact about the policy, and it should shape your pipeline more than the headline number does.

The H-1B fee ledger: 16 dated events in 13 months

Coverage of this policy has come in bursts, one ruling at a time. Laid end to end, the sequence shows a fee that was announced, collected, challenged, blocked, extended, blocked again and then proposed in a second form. Each row below was checked against a primary document or a law-firm summary of one.

The D.C. ruling is dated 23 December 2025 in the case caption and 24 December in one law-firm summary. We use the caption date. Last verified 3 November 2026.

The ledger also exposes a pattern worth naming. Executive action on hiring now moves faster than the rules underneath it can settle, which is the same dynamic traced in the ledger of AI preemption executive orders. If your hiring plan assumes the current state lasts a full fiscal year, the last 13 months argue against you.

What USCIS H-1B registration data shows, and what it cannot

USCIS publishes registration counts for each cap season. These are the closest thing to a public measure of employer demand for new H-1B workers, because a registration is the first, cheapest step. At $215 per registration for FY 2027, it is a low-cost signal that a company wants to hire.

Registrations fell 38% in the first post-fee lottery

USCIS reported 211,600 properly submitted registrations for FY 2027, against 343,981 eligible registrations for FY 2026. That is a fall of about 38.5%. Measured against the FY 2024 peak of 758,994, the FY 2027 count is about 72% lower.

The cap itself did not move. Congress fixes it at 65,000 regular slots plus 20,000 for US advanced degree holders, 85,000 in total. Our own arithmetic gives the ratio that matters to an employer: FY 2026 had about 4.0 registrations per cap slot, and FY 2027 had about 2.5. Your odds of getting a selected candidate rose, even as the cost of using that selection on an overseas hire jumped.

USCIS completed its initial FY 2027 selection on 31 March 2026 and said on 17 July 2026 that it had enough petitions to fill the cap. There was no second lottery. In other words, falling registrations did not leave slots unused.

Two rule changes hit the same lottery

The FY 2027 season was also the first run under a wage-weighted selection rule, published in the Federal Register in December 2025. USCIS now weights selection "based generally on the highest OEWS wage level that the beneficiary's proffered wage will equal or exceed". Registrations at the lowest wage level have the worst odds, which discourages exactly the speculative, low-wage filings that once padded the count. How that interacts with pay bands for technical roles is examined in the analysis of the AI engineer salary spread.

The history shows how much rule design moves these numbers. Between FY 2024 and FY 2025, USCIS switched to beneficiary-centric selection. Registrations for beneficiaries with multiple filings fell from 408,891 to 47,314, and the eligible total fell by about 289,000. No fee was involved. A rule change alone removed more registrations than the 132,000 drop between FY 2026 and FY 2027.

So the honest reading is narrow. Something cut FY 2027 demand by about 132,000 registrations. The fee, the weighted lottery and a softer software hiring market all pushed in the same direction, and the public data cannot separate them.

The three H-1B lawsuits and where each stands in 2026

Three separate cases challenge the fee, filed by three different kinds of plaintiff. They have produced three rulings and two opposite conclusions. All three are on appeal as of this post, in three different circuits.

Chamber of Commerce v. DHS: the fee upheld in Washington

The US Chamber of Commerce and the Association of American Universities sued on 16 October 2025. On 23 December 2025, Judge Beryl A. Howell granted summary judgment to the government. She held the fee fell within the broad power Congress delegated to the executive to restrict the entry of noncitizens. The D.C. Circuit agreed in January 2026 to hear the appeal on an expedited schedule, and no merits decision had been published as of our last check.

State of California v. Mullin: the fee called a tax

A coalition of 20 states filed on 12 December 2025. On 8 June 2026, the District of Massachusetts granted them summary judgment. The court held the payment was "an unconstitutional tax imposed without congressional authorization", and that the implementing agency actions broke the Administrative Procedure Act. It vacated the policy in full, not only for the plaintiff states.

The court paused its own order on 12 June while the government sought a stay. On 24 July 2026, the First Circuit refused that stay. USCIS now says it will comply and that the fee is not owed, adding that "If this order is later lifted, DHS still plans to collect the payment."

Global Nurse Force v. Trump: the extension blocked too

This case, filed on 3 October 2025, brought together employers, a nurse staffing company, unions, a professors' association and a church. On 30 September 2026, Judge Haywood S. Gilliam Jr. vacated and remanded the agencies' implementing policies and barred USCIS, CBP and the State Department from enforcing them. The order reached the September 2026 extension, Proclamation 11069, as well as the original.

The reasoning was procedural. The judge found the policies worked as legislative rules, so the agencies needed notice-and-comment rulemaking and a Regulatory Flexibility Act analysis of small business effects. They did neither. He did not rule on whether the proclamations themselves are lawful. The government appealed to the Ninth Circuit on 9 October 2026.

Named employer responses to the H-1B fee, and what they cost

The verifiable record of named employer responses is thinner than social media suggests. Several widely shared lists of companies "halting" H-1B hiring trace back to aggregator sites with no named spokesperson. We have left those out. Two large employers made statements on the record, and they went in opposite directions.

Walmart paused job offers to candidates who would need an H-1B visa, a company spokesperson told CNN on 21 October 2025. The statement read: "Walmart is committed to hiring and investing in the best talent to serve our customers, while remaining thoughtful about our H-1B hiring approach." CNN reported that Walmart employed more than 2,000 H-1B visa holders, citing government data.

Nvidia went the other way. Chief executive Jensen Huang wrote in an internal memo, reported by Business Insider and covered by Fortune on 8 October 2025, that "Legal immigration remains essential to ensuring the U.S. continues to lead in technology and ideas." Fortune calculated that Nvidia would pay an estimated $147.3 million if the fee had applied to every H-1B approval it received in 2025.

Divide that estimate by $100,000 and you get roughly 1,473 approvals. That is our derived figure, not a disclosed one, and it overstates the true exposure, because approvals for people already inside the US would have been exempt. The point stands anyway. A company with Nvidia's margins can absorb a nine-figure worst case. Very few others can.

Y Combinator chief executive Garry Tan put the asymmetry plainly in a LinkedIn post, as reported by Built In in 2025. The fee, he wrote, "won't bother big tech" but will "kneecap startups". I think he is right about the direction and wrong about the mechanism, for reasons the next section sets out.

Why the H-1B fee lands hardest on startups and smaller SaaS firms

A flat charge is regressive by construction. $100,000 is roughly 465 times the $215 registration fee, and it costs the same whether the employer has 15 staff or 1.5 million. For a seed-stage SaaS company, one overseas engineer can cost as much in fees as months of runway. For a hyperscaler, it disappears into a rounding line.

The government's own numbers confirm the skew. In its August 2026 proposed rule, DHS estimated that 76% of small entities that file cap-subject H-1B petitions would see costs rise above 1% of revenue. DHS treats that threshold as economically significant. That is a government analysis conceding the policy's weight falls on small filers.

The exemption route also favours scale. National interest exceptions are granted only in what USCIS calls an "extraordinarily rare circumstance". A large employer has immigration counsel and government affairs staff to prepare that case. A 12-person startup has a founder and a browser tab.

Here is where Tan's framing needs refining. Under the proclamation, a startup hiring a US-educated graduate who changes status inside the country paid nothing extra. The startups hurt most were those recruiting directly from abroad, often for specialised AI and infrastructure roles where the domestic pool is thin. That population overlaps heavily with companies that run lean on headcount, the model discussed in the analysis of revenue per employee at AI-native firms.

For the many companies founded by one or two people, the calculation is starker still. A foreign co-founder or first engineer abroad was suddenly a six-figure line item, a cost structure that matters for the founding patterns in Carta's data on solo-founder startups. And the graduates who were exempt now face a different squeeze, covered in the piece on the junior developer pipeline.

The second H-1B fee: DHS's $103,265 proposed rule

While the courts dismantled the proclamation's machinery, DHS started building a replacement on firmer legal ground. On 25 August 2026, it published a proposed rule, "Fee for Certain H-1B Petitions", under docket USCIS-2026-0298. It would charge $103,265 on every H-1B cap-subject petition, on top of all existing fees.

The legal basis is different, and that is deliberate. DHS cites its fee-setting authority in sections 286(m) and (n) of the Immigration and Nationality Act. It estimates the fee would raise about $8.8 billion a year on a projected 85,000 cap-subject petitions. Our arithmetic checks: $103,265 times 85,000 is about $8.78 billion.

The scope is where founders should pay attention. The proposed fee would apply to cap-subject petitions whether the beneficiary changes status inside the US or processes abroad. That closes the gap the proclamation left open for graduates already in the country. Cap-exempt employers, including universities and nonprofit research bodies, and H-1B transfers would fall outside it.

The comment period closed on 24 September 2026, and DHS is reviewing comments. This is exactly the notice-and-comment process Judge Gilliam said was missing. My reading is that the procedural wins in Massachusetts and California buy employers time, not a permanent answer. A final rule would face its own legal challenges, including on whether fee money can lawfully be spent outside USCIS.

Where this H-1B fee argument is weakest

This post leans on a registration count and a handful of named responses. Both have real limits, and some readers will draw the opposite conclusion from the same record.

The registration drop has at least three causes

The case that the fee crushed demand rests mostly on the 38% fall. But the weighted lottery hit the same season, and a rule change alone cut 289,000 registrations two years earlier. Software hiring was also weak across this period, a trend visible in federal employment data for software developers. Because most cap registrants are already in the US and were exempt from the proclamation, the fee may explain a minority of the decline. We cannot prove the split either way, and anyone claiming a precise share is guessing.

There is a sourcing caveat too. The 211,600 figure comes from a USCIS statement reported by Ellis, not from the USCIS registration page, which had not added FY 2027 counts by its 21 September 2026 update. The term "properly submitted" may not match the "eligible" definition used for earlier years.

Blocked is not the same as settled

The fee is unenforced today, but the D.C. court found it lawful, and appeals are live in three circuits. A split like this tends to end at the Supreme Court. DHS has said it will collect if the Massachusetts order is lifted, and the $103,265 rule is a second route to the same outcome. A founder who reads "blocked twice" as "gone" could be planning on the wrong side of the most likely ending.

Finally, we found no public count of how many petitions actually paid the $100,000 during its roughly 10 enforceable months, or how many exceptions were granted. That is the number that would settle the impact question, and it is not public.

Frequently asked questions

How to plan your next foreign hire this quarter

Start with a list, not a lawyer. Sort every open role where you might sponsor into two columns: candidates already in the US on another status, and candidates abroad. The first column is cheaper under every version of the rules published so far, except the proposed $103,265 fee. The second column carries the full legal risk if any court order is lifted.

Then put three dates in your calendar: the next rulings from the D.C., First and Ninth Circuits, and any final rule on docket USCIS-2026-0298. If an overseas hire is critical, file while the fee is unenforced and keep the paperwork that shows when you filed. Do not build a hiring plan that only works if the courts keep saying no.

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