On September 30, the U.S. District Court for the Northern District of California ruled in Global Nurse Force v. Trump that the agency policies implementing the fee were unlawful under the Administrative Procedure Act. The court vacated those policies and barred enforcement until the agencies go through notice-and-comment rulemaking. The order covers the policies under both the original proclamation and the September 2026 extension through September 2027, though the proclamations themselves remain in place.

That follows a June ruling in Massachusetts, in a case brought by 20 states, that vacated the same policies. The First Circuit declined to pause that ruling while the appeal proceeds.

Where things stand:

– USCIS has said it is complying with the court orders, so the fee isn't being collected for now. But USCIS has also said DHS intends to collect it if the orders are lifted, and it's unclear whether that would reach petitions filed in the meantime.

– The government appealed the California ruling to the Ninth Circuit on October 9 and asked for a pause. As of this writing, no ruling on that request has been reported.

– The courts are split. A federal court in D.C. upheld the fee in a separate case. The D.C. Circuit heard argument in March and hasn't ruled.

– The rulemaking track is still open. In August, DHS proposed a separate $103,265 fee on cap-subject H-1B petitions, which as proposed would be owed on top of any proclamation payment. The comment period closed September 24, and no final rule has been issued. A fee adopted through notice-and-comment rulemaking would likely face new challenges, but it would address some of the procedural defects the courts identified.

What this means for employers and candidates:

H-1B planning now involves a lottery, a fee that is blocked but not dead, and the possibility of a similar fee adopted by regulation. That's a lot of uncertainty to build a hiring plan around.

For candidates with a strong record of achievement, it's worth knowing that the O-1 has no annual cap, no lottery, and no six-figure fee. It isn't a substitute for the H-1B in every case. The evidentiary bar is high, and not every role or candidate fits. But for researchers, engineers, and creators who can document real recognition in their field, it can take much of the H-1B uncertainty off the table.

If your hiring plan for 2027 depends on the H-1B, it's worth asking now whether another path is available.

***Disclaimer: This post is for general informational purposes and does not constitute legal advice. Every case is fact specific. Please contact our office to discuss how this decision may affect your individual situation.***