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A Massachusetts federal court has invalidated the $100,000 required payment imposed on H‑1B petitions, holding that the measure constituted an unauthorized tax that exceeded executive authority. The decision marks a notable development in the ongoing legal and policy disputes over employment-based immigration and addresses constitutional limits on executive action in this area.

Background

The policy required a $100,000 payment on new H‑1B visa petitions. The government argued the payment fell within the executive branch’s broad authority to regulate the entry of noncitizens. The court rejected that position, concluding that the payment functioned as a tax rather than a permissible immigration fee and that Congress had not authorized the executive branch to impose such a tax under the Immigration and Nationality Act.

Key Legal Takeaways

1.  Immigration Authority Is Not Unlimited

While the executive branch has broad authority to regulate immigration, the court made clear that this authority does not extend to revenue-raising measures without congressional approval.

2.  The Distinction Between Fees and Taxes

The decision addresses an important legal distinction:

  • Fees must be tied to the cost of administering a program; and
  • Taxes are broader revenue-generating measures requiring congressional authorization.

By characterizing the $100,000 payment as a tax, the court placed it outside the scope of permissible executive action.

3.  Required Payment Vacated in Its Entirety

The court vacated the policy outright, eliminating the requirement in full.

Practical Implications for Employers

The decision carries several implications for employers and global mobility teams, including:

  • Cost implications: The ruling removes a potentially significant cost barrier to H‑1B sponsorship.
  • Policy volatility continues: The case illustrates how quickly high-impact immigration policies can be implemented — and challenged.
  • Litigation risk: Employers should anticipate continued legal challenges to immigration-related executive actions.

Looking Ahead

The ruling provides immediate relief, though it may not be the final word. Appeals or alternative policy approaches may follow given the broader policy objectives underlying the measure. Employers should monitor further developments and consider contingency planning for workforce sponsorship strategies as this area continues to evolve.

H-1B workers who lose their jobs have sometimes followed the strategy of filing a Form I-539 application to change status from H-1B to visitor status (B-1/B-2) within the 60-day grace period following termination. The goal of that approach is to allow terminated H-1B workers sufficient time to interview with potential employment leads, secure new employment, and transition back to H-1B status, without departing from the United States. For many years, this strategy was widely accepted, and was supported by published U.S. Citizenship and Immigration Services (USCIS) guidance, upon which workers, employers, and immigration counsel alike relied.

In recent months, however, stakeholders have observed a policy shift regarding this strategy, with increasing frequency of Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs), and, in some cases, denials targeting this approach. Affected workers and their employers should be aware that this approach now carries risks that were not previously associated with it.

What Changed

USCIS previously maintained a guidance page titled, “Options for Nonimmigrant Workers Following Termination of Employment,” which stated that job searching and attending interviews are permissible B-1/B-2 activities. As of March 31, 2026, the guidance page has been archived. Adjudicators have taken the position that the guidance on the archived page is no longer current and does not control their decisions.

As a result, job searches are being characterized in some adjunctions as an impermissible primary purpose of U.S. presence. With respect to B-2 nonimmigrant visitor for pleasure, USCIS has reasoned that an open-ended job search does not fit the definition of a temporary visit for pleasure. Requests for a maximum 180-day stay in visitor status have also been challenged as excessive, where the stated rationale involves concluding personal affairs or exploring employment opportunities.

RFEs have increasingly asserted that searching for work, attending interviews, and accepting employment are activities inconsistent with B-1/B-2 classification. In addition, USCIS has — in some cases — used a subsequent H-1B petition filed by a new employer on behalf of a foreign national who previously filed a change of status application as evidence that the foreign national misrepresented intent at the time of that earlier filing. In other words, USCIS has in recent cases argued that the subsequent H-1B filing demonstrates the foreign national never intended a visitor stay, treating changed circumstances as evidence of original preconceived intent.

The Statutory and Regulatory Framework

These developments reflect a change in USCIS policy, rather than the underlying law. The controlling statute, the Immigration and Nationality Act (INA) Section 101(a)(15)(B), defines B-1/B-2 nonimmigrant status as temporary visits for business or pleasure, respectively, and prohibits admission for the purpose of performing skilled or unskilled labor, rather than business meetings such as job interviews, or review, consideration, or acceptance of job offers. The regulatory framework reflects the same distinction. The text of the INA and relevant regulations have not changed. What has changed is USCIS adjudicatory practice. Accordingly, applicants should be prepared to present clear legal arguments establishing eligibility for the requested change of status at the time of initial filing, in anticipation of RFEs or other requests consistent with this shift.

The 60-Day Grace Period

The 60-day grace period available to foreign national workers following termination of H-1B employment does not guarantee approval of a change of status application. The grace period permits a terminated H-1B worker’s new employer to file a change of employer H-1B amendment in country or for the foreign national to file a change of visa status application with USCIS, likewise without departing. Filing a Form I-539 within the 60-day grace period preserves authorized stay in the U.S. while the application is pending, but it does not guarantee approval of the requested benefit.

If the I-539 is ultimately denied after the grace period has expired, the worker may be treated as having fallen out of status. Unlawful presence would then begin to accrue, with consequences for future immigration benefit requests, admissibility, and reentry. Based on the recent changes, a timely filing alone does not insulate an applicant from the risks described above.

Potential Cost Implications for Employers

Employers seeking to hire H-1B workers who previously faced termination and filed a B-1 or B-2 change of status, which was later denied, may face financial risk.

If such a change of status application is denied, the worker would be required to depart the United States and seek a visa at a U.S. embassy or consulate in the country of their nationality or most recent residence. Under the Presidential Proclamation that took effect in Sept. 2025, certain new H-1B petitions involving consular processing are subject to a $100,000 fee, depending on employer size and circumstances.

Considerations for Workers and Employers

Terminated H-1B workers may still file for a B-1/B-2 change of status within the 60-day grace period, and USCIS continues to approve some requests. However, the added layer of due diligence requires that these filings should be constructed with the current adjudication landscape in mind. The application should reflect legitimate, temporary purposes with clear endpoints, including concrete evidence of the intended temporary nature of the stay, and ties to the country of nationality or last residence. Job searches and interviews should not be identified as the stated primary purpose, even if those activities may occur incidentally to the temporary stay.

Where USCIS questions whether a job search was the primary purpose of an intended stay, a response that addresses the intent question directly, reframes the stated purpose around permissible activities, and provides concrete supporting documentation may support the application process.

When building their hiring timelines, employers may wish to consider the possibility of delays resulting from RFEs, NOIDs, or other USCIS action. Additionally, employers should consider including contingency plans addressing the possibility of denial — such as the potential for an overseas assignment. This shift in USCIS adjudication means that neither workers nor employers should treat this strategy as a reliable or guaranteed bridge for continued U.S. presence and quick processing of H-1B petitions.

On March 31, 2026, U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough electronic registrations to meet the H-1B numerical cap for fiscal year 2027 (FY 2027), including the advanced degree exemption (commonly known as the “master’s cap”). This marks the conclusion of the initial H-1B registration and selection period — the first conducted under USCIS’s new wage-level-weighted process favoring higher offered compensation. Petitioners will have at least 90 days from April 1, 2026, to file H-1B petitions for selected beneficiaries.

USCIS has notified all prospective petitioners whose beneficiaries were selected in the lottery. Registrants’ online accounts will display their registration status, allowing petitioners to confirm selections. Only those with selected registrations may proceed with filing an H-1B cap-subject petition for FY 2027.

H-1B Petition Filing Period

USCIS opened the filing window for H-1B cap-subject petitions on April 1, and petitioners may file only for selected beneficiaries based on a valid registration submitted during the registration period. USCIS noted that the latest date for receipt of cap-subject H-1B petitions is June 30, 2026.

New Form I-129 and Supporting Documents

Petitioners should follow USCIS requirements to avoid rejections or delays. Petitioners must include a copy of the beneficiary’s H-1B selection notice with each cap-subject petition. In addition, as of April 1, USCIS will only accept the Feb. 27, 2026, edition of Form I-129 (Petition for a Nonimmigrant Worker). Compared to prior versions, the new Form I-129 mandates more detailed information about the offered H-1B position and requires that the information be consistent with the Standard Occupational Classification (SOC) code selected during the cap registration process. As another new mandate, USCIS requires that petitioners include “evidence of the basis of the wage level selected” during the registration process.

Petitioners must still submit all other required supporting evidence as outlined in the Form I-129 instructions to establish eligibility for petition approval. Failure to comply with these requirements may result in rejection, a request for evidence or denial of the petition.

$100,000 Additional Fee Requirement

Under the Presidential Proclamation on Restriction on Entry of Certain Nonimmigrant Workers, certain H-1B petitions filed on or after Sept. 21, 2025, must be accompanied by an additional $100,000 payment as a condition of eligibility.

USCIS has confirmed that petitions that cannot be approved as an in-country change of status will be subject to the $100,000 as a condition of approval, unless the agency has approved a national interest exception from the employer in connection with this requirement.

Takeaways

The FY 2027 H-1B filing process presents increased compliance requirements. With stricter documentation requirements and evolving policy considerations, both employers and applicants should proceed with caution and precision. Timely preparation and careful review of eligibility requirements may support a successful H-1B petition.

USCIS has finalized a major restructuring of the H-1B cap selection process. In the upcoming FY 2027 H-1B cap season, the traditional random lottery will be replaced with a wage weighted selection system, giving candidates with higher DOL prevailing wage levels (Level I–IV) proportionally greater odds of selection.

The Department of Homeland Security (DHS) published the rule in the Federal Register on Dec. 29, 2025, with an effective date of Feb. 27, 2026. The FY 2027 H-1B cap registration period opens on March 4, 2026, and runs through March 19, 2026. USCIS should make the selections by March 31, 2026, and the FY 2027 H-1B cap petitions filing period will run from April 1, 2026, through June 30, 2026.

As such, employers will have a relatively short time period to enter their prospective H-1B employees into the drawing. Companies may wish to assess their affected employee population, prepare data for immediate entry once the registration period opens, and assemble all relevant documentation to enhance compliance and minimize the risk of adverse government action.

This GT Alert summarizes the key changes, risks, and shares employer considerations.

Continue reading the full GT Alert.

U.S. Citizenship and Immigration Services (USCIS) announced at the end of January that the FY 2027 H‑1B cap registration period will run from March 4, 2026, at 12:00 p.m. ET to March 19, 2026, at 12:00 p.m. ET. The agency will require employers and representatives to register each beneficiary electronically through a USCIS online account and to pay the $215 registration fee.

Key Points

  • Employers without an existing USCIS online account must create an organizational account before submitting registrations.
  • Employers may only submit beneficiary information and registrations on or after March 4, 2026.
  • USCIS intends to issue selection notifications by March 31, 2026, through users’ online accounts. If registrations exceed the annual cap, USCIS will select from unique beneficiaries with properly submitted registrations.
  • A petitioner may file an H‑1B cap‑subject petition only if the beneficiary’s registration is selected.

New to FY2027 H-1B Cap

  1. Weighted Selection System: USCIS has confirmed that it will implement a weighted selection process, prioritizing beneficiaries with higher skill levels and higher wages.
  1. Possible $100,000 Supplemental Fee: Under a Sept. 19, 2025, presidential proclamation, petitioners may be required to pay an additional $100,000 fee if the individual they are sponsoring is outside the U.S. The petitioner must pay the fee after USCIS selects their registration and before they file the H‑1B petition. This supplemental fee does not apply to beneficiaries who are already in the U.S. and have maintained lawful status.

Recent developments reflect a coordinated policy shift toward increased executive control over H-1B entry and a structural prioritization of higher-wage positions in the annual H-1B cap process. Both developments remain subject to ongoing and potential litigation. In addition to those updates, the immediate impact of a September 2025 presidential proclamation requiring employers to pay a fee for filing an H-1B visa petition is narrower than some have assumed.

DC District Court Upholds Presidential Authority Under INA § 212(f)

In a recent decision in Chamber of Commerce v. U.S. Department of Homeland Security, the U.S. District Court for the District of Columbia upheld a presidential proclamation imposing a $100,000 fee on certain H-1B visa applicants, relying on the president’s broad authority under the Immigration and Nationality Act (INA) § 212(f) to condition the entry of nonimmigrants when deemed to be in the national interest.

Although the case was resolved on cross-motions for summary judgment, the court did not approach the matter as a conventional, fact-intensive Administrative Procedure Act challenge.

Instead, the court framed the dispute as one involving presidential authority and applied a deferential standard of review drawn from Trump v. Hawaii. Under this framework, the court expressly declined to weigh competing economic evidence regarding the H-1B program. The court accepted assertions in the proclamation concerning U.S. worker displacement and labor-market effects at face value and did not evaluate or resolve plaintiffs’ contrary evidence and policy arguments.

The court’s analysis focused on whether Congress, through INA § 212(f), delegated sufficiently broad authority to the president to impose conditions on entry. The court did not assess whether the proclamation accurately described the statutory structure or historical purpose of the H-1B program itself. Once it concluded that such authority existed, the court required only a rational connection between the proclamation’s stated objectives and a legitimate governmental interest.

Limitations on the Proclamation’s Scope

While the court’s decision has generated attention from stakeholders, the current proclamation applies in a limited set of circumstances. President Donald Trump’s administration issued the proclamation on Sept. 19, 2025, and it became effective on Sept. 21, 2025. It applies only to H-1B visa applicants seeking entry from outside the United States and only to cases filed on or after Sept. 21, 2025. It does not apply to change-of-status filings within the United States, H-1B extensions, amendments, or transfers for individuals already in H-1B status, or cap-exempt H-1B petitions. As a result, some employers and H-1B workers will not be directly affected.

Litigation Remains Ongoing

The D.C. court decision may not be the final word on the $100,000 fee. Two additional federal lawsuits challenging the fee remain pending in other jurisdictions, and the Chamber of Commerce has decided to appeal the D.C. court’s decision. These proceedings may result in further clarification—or potential limitation—of executive authority in this area. Accordingly, the legal framework governing the fee remains unsettled, and future court rulings may impact its implementation or scope.

DHS Finalizes Wage-Based Weighted Selection Rule for H-1B Cap Registrations

Separately, the Department of Homeland Security (DHS) has finalized a wage-based weighted selection system for H-1B cap-subject registrations, effective beginning with the FY 2027 registration season. This rule replaces the long-standing random lottery with a system that increases selection odds for higher-wage positions. Under the final rule, registrations tied to Level IV wages will be entered into the selection pool four times, Level III wages three times, Level II wages twice, and Level I wages once.

At the registration stage, employers must disclose the SOC code, area of intended employment, and the highest Occupational Employment and Wage Statistics (OEWS) wage level met or exceeded by the offered wage. For positions involving multiple worksites, the lowest applicable wage level must be used. Wage levels are locked in at the time of registration and must match the subsequently filed petition.

DHS Response to Public Comments

Despite receiving 2,731 public comments, DHS finalized its rule without modifying the regulatory text. The agency rejected requests for exemptions or alternative selection methodologies, emphasizing administrative feasibility, statutory discretion, and policy objectives. DHS concluded that entry-level positions would retain meaningful—though reduced—selection chances; that carve-outs for small businesses, specific industries, or U.S. degree holders would undermine the rule’s goals; and that OEWS wage levels already account for geographic and occupational variation. DHS also emphasized that cap-exempt programs continue to address health care and rural workforce needs.

Projected Selection Outcomes

DHS estimates that under the weighted system, Level I registrations will have an approximate 15.29% chance of selection, compared to 30.58% for Level II, 45.87% for Level III, and 61.16% for Level IV. By comparison, the historical random lottery produced an average selection rate of approximately 29.59% across all wage levels.

Potential for Litigation Challenging the Weighted Selection Rule

Although finalized, the wage-weighted selection rule may also face judicial challenges. Potential claims may include arguments that the INA requires random selection among properly filed petitions, that DHS exceeded its statutory authority, or that the rule violates the Administrative Procedure Act. Any resulting litigation may delay the implementation of DHS’s rule, result in injunctions, or require further agency action.

Practical Takeaways for Employers

Employers may need to avoid over-generalizing the reach of the proclamation, which applies only to certain consular-processed H-1B cases filed on or after Sept. 21, 2025. At the same time, employers should consider planning for continued uncertainty, as both the $100,000 fee and the wage-weighted lottery remain subject to ongoing and potential future litigation. Wage strategy and registration accuracy will be critical if the weighted system proceeds as scheduled, and employers may wish to explore alternative visa options and cap-exempt pathways as part of their FY 2027 workforce planning.

Takeaways

Taken together, these developments reflect an administration-wide emphasis on reshaping the H-1B program through executive authority and regulatory design, particularly at the points of entry and selection. At the same time, multiple legal challenges remain active, and further judicial review may occur.

The U.S. Department of Homeland Security (DHS) published its final rule prioritizing the allocation of H-1B visas to higher-skilled and higher-paid workers in the Federal Register on Dec. 29, 2025.

The new rule replaces the random lottery for selecting visa recipients with a process that gives greater weight to those in higher-paid roles with higher education and experience requirements. 

This rule follows a notice of proposed rulemaking (NPRM) issued on this topic on Sept. 24, 2025, called Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions, 90 FR 45986 (Sept. 24, 2025). Please see our prior GT Blog for further details on the NPRM.

The final rule replaces the current random H‑1B lottery with a weighted system that assigns multiple entries to each registrant based on the proffered wage level, as determined by the Department of Labor (DOL)’s Occupational Employment and Wage Statistics (OEWS) structure. According to the posted final rule, high wage offers may get more entries, increasing chances of selection.

  • Wage Level IV (roles requiring advanced education/experience, often leadership or highly specialized roles) → 4 entries
  • Wage Level III (roles requiring advanced education/experience handling complex tasks; may supervise others) → 3 entries
  • Wage Level II (roles requiring some experience involving moderately complex tasks with limited supervision) → 2 entries
  • Wage Level I (entry-level roles requiring basic understanding and performing routine tasks under close supervision) → 1 entry

As such, higher-paid foreign workers who are being offered senior roles requiring higher education levels and/or more work experience would have higher chances of selection. Candidates for entry-level roles will still have the opportunity to participate; however, they may face lower chances of selection.  

Now that DHS has finalized and published its rule, employers may wish to consider strategically positioning their H‑1B filings within this new weighted system by proactively addressing wage levels, wage source documentation, and regulatory compliance.

Based on the published final rule, employers should consider the following:

  1. Strategic Wage Positioning
    • More senior roles, paired with a higher wage, may see higher odds for approval: Consider senior roles with compensation that meets higher wage levels.
  1. Prevailing Wage Compliance
    • Offering higher wages alone is not sufficient: the offered wage level must be assigned based on:
      • The proper DOL classification of the offered role; and
      • The actual education and work experience requirements for the offered role.
    • Maintain documentation to support wage assignments and withstand DOL/U.S. Citizenship and Immigration Services review.
  1. Recruitment & Budget Planning
    • Adjust budgets to accommodate wage increases for higher-weighted entries.
    • Incorporate these changes into annual workforce strategies and financial forecasts.
  1. Informed Submission Timing
    • Plan wage and position decisions well before the registration period, as wage info must be included in initial registration, not later during filing.

This Times of India article discusses new USCIS requests for evidence (RFEs) under the Trump administration that demand a $100,000 H-1B visa fee, creating confusion and concern among employers and visa applicants, especially Indians. Greenberg Traurig Immigration & Compliance Co-Chair Kate Kalmykov notes that the heightened costs and uncertainty may cause companies to reconsider or delay H-1B sponsorships. This development is significant as it may add financial and procedural hurdles to a visa program widely used by skilled foreign professionals.

Read “USCIS Issues Requests for Evidence Demanding $100,000 H-1B Fee; Here’s What it Means for Indians.”

This CNBC TV 18 article discusses the U.S. Department of Labor’s Project Firewall, launched in September 2025 to intensify enforcement against misuse of the H-1B visa program and prioritize American workers. The initiative allows the government to investigate employers proactively and is accompanied by a public campaign emphasizing job protection. Greenberg Traurig Immigration Co-Chair Kate Kalmykov noted that the program marks one of the most aggressive H-1B enforcement efforts in years, signaling that compliance is mandatory and investigations may become deeper and faster.

Read “‘Put Our Workers First’: US Tightens H-1B Visa Scrutiny to Protect ‘American Jobs.'”

In a new procedural development, U.S. consular posts have started forwarding B-1 in lieu of H-1B visa applications to the Department of State (DOS)’s Visa Office in Washington, D.C., for final review and approval before issuance. This additional review step represents a more centralized approach to evaluating such applications and reflects growing attention to how this limited visa category is being used.

Background: Narrow Use and Increased Oversight

The B-1 in lieu of H-1B classification has traditionally allowed certain foreign professionals to perform short-term, professional assignments in the United States while remaining on the payroll of a foreign employer. The classification requires that the worker remain employed and paid abroad, that the salary or remuneration continue to come from a foreign source, and that the individual not enter the U.S. labor market through local employment or direct hire. The underlying principle is that work performed in the United States under this classification must have no impact on the U.S. labor market and must be incidental to the person’s ongoing foreign employment.

Following implementation of the $100,000 “Visa Integrity” fee for new H-1B petitions filed on or after Sept. 21, 2025, U.S. authorities are concerned that some employers may attempt to use the B-1 in lieu of H-1B route to avoid paying the new fee for individuals outside the United States. The concern is that beneficiaries might enter under this classification, then later file an H-1B change of status petition from within the United States, effectively bypassing both the fee and the intended H-1B screening process.

The New Review Process

To address these concerns, DOS is now having consular posts refer B-1 in lieu of H-1B visa applications to the Visa Office in Washington, DC for final review. Consular officers will have to wait for the Visa Office to approve an application before issuing the visa stamp. The Visa Office will assess whether an application meets the narrow legal standards for the category and whether it appears to be an attempt to avoid H-1B program requirements or the new statutory fee.

As a result, applicants applying under this classification may anticipate longer processing times and closer scrutiny. Employers planning to send professionals to the United States for short-term work might evaluate whether the proposed activities fall within permissible B-1 business parameters or whether an H-1B petition (with full fee payment) is the appropriate route.

Implications for Employers

This change underscores the government’s focus on fee compliance and the proper use of visa classifications. Employers should consider taking the following steps:

  1. Reevaluate any planned use of the B-1 in lieu of H-1B category for overseas professionals.
  2. Ensure that documentation clearly demonstrates the continued foreign employer-employee relationship and that compensation is paid abroad.
  3. Avoid structuring travel or assignments that might resemble H-1B employment.
  4. Anticipate possible delays in visa issuance due to the new review process.

While the B-1 in lieu of H-1B option remains available, it is now subject to a more rigorous level of oversight. Use of this already challenging classification should be used in very limited circumstances, and employers may wish to assess alternative immigration options where possible.