U.S. District Judge Leo Sorokin in Boston ruled that the $100,000 fee on new H-1B visa petitions is an unlawful tax. The Constitution reserves taxing power to Congress. The president cannot impose one by proclamation.
The fee took effect September 21, 2025, under Presidential Proclamation 10973. Standard H-1B filing fees ran $2,000 to $5,000. The $100,000 surcharge increased the cost by 20 to 50 times.
Twenty state attorneys general, led by California, sued. They argued the fee blocked hospitals from hiring doctors, school districts from recruiting teachers, and universities from filling research positions. Rural hospitals were hit hardest, since they compete for a smaller pool of specialists willing to work outside major cities.
Employers made the $100,000 payment on over 700 petitions in the fee’s first year, according to the September 2026 proclamation that extended it.
Judge Sorokin wrote that “the substance and application of the $100,000 payment reveal that it is a tax, regardless of what the payment is called.” The fee raised revenue. It did not cover the cost of processing an application. That makes it a tax, and only Congress can impose taxes.
A separate federal judge in Washington, D.C. had upheld the same fee in December 2025, and the U.S. Chamber of Commerce appealed that ruling. The government appealed the Boston ruling to the First Circuit, which refused to pause it on July 24, 2026.
Seventy percent of the H-1B petitions approved in fiscal 2025 were for workers born in India, according to USCIS.
What you can do now
- Track the appeals. The Boston ruling is before the First Circuit and the D.C. ruling is before the D.C. Circuit.
- If your employer or institution was affected, document the impact. States building the legal record need specific examples of positions unfilled, patients untreated, classes unstaffed.
- Contact your representative about legislative fixes. Congress could clarify that visa fees must cover processing costs, not function as revenue tools.
Update and correction, October 15, 2026: Both rulings are now on appeal. The government appealed the Boston ruling, and on July 24 the First Circuit refused to pause it while the appeal goes forward (First Circuit order). On September 18, President Trump extended the $100,000 requirement to September 21, 2027.
That proclamation says employers made the payment on over 700 petitions in its first year (Federal Register). An earlier version of this brief said more than 200,000 applicants had paid by June 2026 and only 85 payments had been processed by February; neither figure could be matched to a source, and both were removed.
It also said three out of four H-1B visas go to workers from India; USCIS reports that 70 percent of petitions approved in fiscal 2025 were for workers born in India (USCIS). Unsourced lines about the jobs H-1B workers fill were removed.