UPDATE TO ALERT BELOW:
The same judge who ruled on the $100,000 fee has agreed to pause his order in light of the White House reporting that they will appeal the decision. Please speak with your Clark Lau LLC attorney as to how to proceed and whether the $100,000 fee impacts your case.
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On Monday, June 8, 2026, a Federal District Court judge ruled that the September 19, 2025 White House Proclamation regarding the $100,000 H-1B fee was unconstitutional and vacated it - that is, the judge rendered the proclamation void. The judge found that the $100,000 fee amounted to being a tax that the President imposed. Under the U.S. Constitution, Congress has the exclusive authority to issue a tax unless it delegates that authority to someone else. In this case, Congress did not delegate that authority to the President. The judge found that the statutes from which the President arguably drew his authority for the Proclamation to tax did not give him such authority, and because Congress did not give him the authority, the Proclamation was unconstitutional.
This ruling is good news, and many read this as removing the $100,000 fee where it would have been applicable. We believe however that the White House will appeal this decision, and we will need to wait and see how USCIS handles this. We will continue to monitor this development. In the meantime, we continue to recommend avoiding the factors which would have triggered the $100,00 fee in the first place.
For background reference, details of the September 19, 2025 White House Proclamation are as follows:
What petitions are subject to the $100,000 fee?
- New H-1B petitions for individuals outside of the United States without a valid H-1B visa.
- Petitions filed on or after September 21, 2025, seeking consular notification, port of entry notification, or pre-flight inspection for an individual in the U.S.
- Petitions filed on or after September 21, 2025, that requests a change of status, amendment, or extension of stay, and the USCIS denies the change of status, amendment, or extension of stay.
What petitions are not subject to the $100,000 fee?
- Petitions filed before September 21, 2025.
- Petitions for any individual with a previously issued and currently valid H-1B visa.
- Any petition filed on or after the effective date that requests an amendment, change of status, or extension of stay, and the USCIS grants the change of status, amendment, or extension. The $100,000 fee does not apply once the change of status, amendment, or extension is granted, even if the individual leaves the U.S. subsequently, applies for a visa based on the petition, and reenters the U.S. seeking admission in H-1B status.
The above has been provided for educational purposes only; Clark Lau LLC will continue to monitor the developments. Please contact your Clark Lau LLC attorney to determine how this may impact you if you have questions.