First Circuit Denies a Stay: The $100,000 H-1B Payment Policy Remains Vacated

Summary

On July 24, 2026, the U.S. Court of Appeals for the First Circuit denied the federal government's motion for a stay pending appeal.

The District of Massachusetts had held that the $100,000 H-1B payment policy implemented by the Department of Homeland Security (DHS) and the Department of State (DOS) to carry out a Presidential Proclamation exceeded statutory authority, and vacated it in its entirety under the Administrative Procedure Act (APA).

The First Circuit did not decide the merits of the appeal. It held that the government had failed to show a strong likelihood of success on appeal and therefore declined to restore the policy while the appeal proceeds.

The district court's judgment vacating the policy remains in effect. The government's appeal on the merits continues.

I. Background

• Case: State of California, et al. v. Mullin, et al.
• No.: 26-1699
• Court: United States Court of Appeals for the First Circuit
• Decided: July 24, 2026

On September 19, 2025, President Trump issued Proclamation 10973 requiring a $100,000 payment with certain H-1B petitions. The proclamation was directed principally at petitions for beneficiaries outside the United States, and instructed that:

• the Secretary of Homeland Security restrict processing of covered petitions not accompanied by the $100,000 payment;
• the Secretary of State restrict approval of applications not accompanied by the payment;
• both departments take necessary measures to restrict the entry of persons not meeting the payment condition; and
• agencies may grant exceptions where a particular individual, company, or industry is in the national interest.

The proclamation cited 8 U.S.C. §§ 1182(f) and 1185(a) of the Immigration and Nationality Act. Section 1182(f) authorizes the President, on finding that the entry of a class of aliens would be detrimental to the interests of the United States, to suspend entry or impose appropriate restrictions on entry. Section 1185(a) authorizes the President to prescribe reasonable rules, regulations, orders, limitations, and exceptions regarding the entry and departure of aliens.

After the proclamation, DHS and DOS implemented the $100,000 requirement through fee schedules, FAQs, and other documents. In the litigation, the parties refer to those implementing measures collectively as the "Policy."

II. Twenty States Sue

On December 12, 2025, twenty states — including California, Massachusetts, New York, New Jersey, and Washington — filed suit challenging the Policy. They argued that it:

• exceeded the statutory authority Congress granted the executive;
• violated the APA's procedural requirements;
• was arbitrary and capricious; and
• constituted unauthorized executive action in excess of authority.

The states also argued that the $100,000 requirement would directly increase the cost for public universities, schools, and healthcare institutions to employ H-1B professionals, worsening shortages of teachers, physicians, and others.

On June 8, 2026, the District of Massachusetts granted the plaintiffs' motion for summary judgment and vacated the Policy in its entirety. The government appealed and moved for a stay pending appeal. The district court declined to stay its judgment but granted a temporary administrative stay while the First Circuit considered the emergency motion.

III. The Standard for a Stay

The court applied the four factors from Nken v. Holder:

• whether the applicant has made a strong showing of likelihood of success on the merits;
• whether the applicant will be irreparably injured absent a stay;
• whether a stay will substantially injure the other parties; and
• where the public interest lies.

Likelihood of success and irreparable injury are the most important. The First Circuit concluded the government had not made an adequate showing on the first.

IV. Did Congress Clearly Authorize the $100,000 Payment?

The central question at this stage is whether 8 U.S.C. §§ 1182(f) and 1185(a) clearly authorize the President and the agencies to impose a $100,000 payment requirement.

The district court found the payment closer in character to a tax or fiscal burden. Under Skinner v. Mid-America Pipeline Co., where the executive imposes an additional financial burden on regulated parties and the funds collected are not used to provide corresponding services to the payer, the executive must show that Congress clearly conferred the charging authority.

The government argued that the payment is not a tax but an immigration regulatory measure — that § 1182(f) permits the President to impose "any restrictions," and that the $100,000 payment may be treated as an eligibility condition H-1B beneficiaries must satisfy before entry.

The First Circuit concluded that argument was insufficient to show a strong likelihood of success. The dispute, the court noted, is not whether Congress could confer charging authority on the executive, but whether it has done so through the existing provisions. Although § 1182(f) uses the broad phrase "any restrictions," the text says nothing about imposing fees, payments, or other financial burdens. Section 1185(a) likewise does not provide for any comparable payment requirement.

V. Why the Court Rejected the Government's Reliance on Algonquin

The government relied on Federal Energy Administration v. Algonquin SNG, Inc., arguing that broad statutory language can encompass the power to impose charges. There, the Supreme Court held that a provision authorizing the President to take such action as necessary to adjust imports could include imposing fees on imported goods.

The First Circuit found that case insufficient to support the government's position here. Citing the Supreme Court's recent decision in Learning Resources, Inc. v. Trump, the court noted that the statute in Algonquin contained not only a broad grant of discretion but express textual reference to the relevant charges. Sections 1182(f) and 1185(a), by contrast, say nothing about the payment at issue.

The court further observed that where the INA authorizes H-1B–related fees, it typically uses the word "fee" expressly and specifies which agency collects it, on what petitions or from which employers, how the funds are allocated, and for what administrative or public programs they may be used. Several provisions of 8 U.S.C. § 1184(c), for example, expressly authorize DHS or the State Department to collect specific H-1B fees, and 8 U.S.C. § 1356 governs the administration and use of those funds. That legislative pattern indicates that when Congress intends an agency to collect a fee, it generally says so expressly.

The government also could not identify any historical use of § 1182(f) or § 1185(a) to impose a comparable visa payment. On those grounds, the First Circuit concluded the government had not adequately shown that the $100,000 policy falls within an entry restriction Congress authorized.

VI. Is Agency Implementation of a Proclamation Final Agency Action?

The government also argued that the $100,000 payment was set directly by the proclamation, that DHS and DOS merely execute the President's directive, and that the agencies' measures therefore do not constitute "final agency action" reviewable under the APA.

Under the APA, courts generally review only final agency action, which ordinarily requires two conditions:

• the action marks the consummation of the agency's decisionmaking process; and
• it determines rights or obligations, or produces legal consequences.

The government argued that because DHS and DOS did not independently set the payment requirement, the agency documents themselves create no new rights or obligations.

The First Circuit found an unexplained inconsistency in that position. In arguing irreparable injury, the government contended that each additional day the district court's judgment remained in effect would mean more foreign nationals filing petitions and entering the United States. But if the agencies' implementing measures had no independent legal effect, vacating them should not, in principle, change H-1B filing and entry outcomes. The government did not adequately explain the contradiction.

The court also cited its own precedent holding that agency action implementing a Presidential directive generally remains subject to APA review. The President's own action may fall outside the APA's definition of agency action, but agency measures that implement a policy and produce legal consequences for private parties are not thereby immune from review. The government therefore also failed to show a strong likelihood of success on the final agency action question.

VII. The Remaining Stay Factors

On irreparable injury, the First Circuit assumed for present purposes that the government had satisfied the factor. But it concluded the government had not adequately shown that restoring the $100,000 policy would not substantially injure the plaintiff states, which had shown the policy would affect hiring of H-1B professionals by their public education, healthcare, and public service institutions. The government argued principally that such losses could be compensated economically in the future, without adequately addressing the staffing shortages and effects on public services that restoration would cause.

On the public interest, the government emphasized that the H-1B program may depress wages and displace American workers. But it likewise did not adequately explain whether restoring the $100,000 requirement would have the opposite effect on education, healthcare, and other public services. The court therefore concluded that, apart from likelihood of success, the remaining factors were at best mixed and insufficient to support a stay. The First Circuit denied the motion.

VIII. The Legal Significance

1. An "entry restriction" does not automatically include imposing a substantial payment

Section 1182(f) confers broad authority over entry, but this decision indicates that a general grant of authority to restrict entry does not necessarily include the power to impose charges. Where an executive measure moves from a status restriction, a time restriction, or a condition of entry into a substantial financial burden, a court may require clearer congressional authorization.

2. The court looks to the substance of the payment, not its label

Whether the executive calls a charge a payment, a fee, a condition, or a restriction does not determine its legal character. A court will examine:

• whether the payment relates to the cost of services the agency provides;
• whether the amount is directed principally at recovering administrative costs;
• whether Congress clearly authorized collection;
• whether the statute governs the administration and use of the funds; and
• whether the payment is used principally to achieve other labor, industrial, or immigration policy objectives.

A policy label cannot substitute for a statutory authorization analysis.

3. A proclamation does not immunize agency implementation from APA review

Even though the President is not an agency under the APA, the departments implementing a Presidential directive must act within the bounds of congressional authorization. Where agency notices, fee schedules, operational guidance, or adjudication policies in fact determine applicants' obligations and produce legal consequences, they may constitute final agency action subject to APA review.

4. This is not a final merits ruling

The First Circuit addressed only whether to stay the district court's judgment pending appeal. Its conclusion that the government failed to make a strong showing of likelihood of success is not a final determination that the government must lose. The merits appeal may still address:

• the scope of §§ 1182(f) and 1185(a);
• the legal character of the $100,000 payment;
• whether the DHS and DOS measures are final agency action;
• the scope of the district court's universal vacatur;
• whether the plaintiff states have standing; and
• other APA procedural and substantive questions.

The government may also seek emergency relief from the Supreme Court.

IX. What This Means for H-1B Employers and Applicants

On the current posture, the district court's vacatur remains in effect and the First Circuit has declined to restore the $100,000 requirement pending appeal. Companies preparing H-1B filings should nonetheless note the following:

• follow the current official operational requirements of USCIS and the State Department;
• confirm the specific requirements separately at the petition, consular visa, and entry stages;
• build timing flexibility for policy change into cases involving beneficiaries abroad;
• reassess hiring plans that were deferred, suspended, or cancelled;
• address visa and policy-change contingencies appropriately in employment agreements and offer letters; and
• continue monitoring the merits appeal in the First Circuit and any further steps at the Supreme Court.

The present ruling resolves whether the policy may be restored during the appeal — not the ultimate outcome of the dispute.

Closing

This case does not directly answer whether the $100,000 payment is sound immigration policy. The question at this stage is more basic: whether the executive has the congressional authorization needed to implement it.

The First Circuit's interim conclusion is that the general entry-restriction provisions the government invokes do not give it a strong likelihood of success on the charging-authority question.

For policies involving administrative charges, licensing fees, or other new financial burdens, the case is a reminder that policy objective and statutory authority are two different things. Even an agency with comparatively broad regulatory authority must still show that a specific measure falls within what Congress authorized.

Each case and each applicant's circumstances differ. This is a general analysis of the First Circuit's July 24, 2026 ruling and does not constitute legal advice on any particular H-1B petition, employment arrangement, or immigration status.