US Approves H-1B Petitions Without $100,000 Fee Ahead of Premium Processing Deadline

USCIS has begun approving some H-1B petitions covered by the $100,000 fee without requiring employers to pay it, immigration law firm Meltzer Hellrung said. The approvals follow weeks of stalled cases, including filings that had passed the premium processing deadline.

Meltzer Hellrung organized and publicized a multi-company mandamus effort seeking to compel decisions. The firm said approvals began arriving without a lawsuit being filed.

The movement is uneven. Some cases may still need a direct push, the firm said.

The government has appealed the California ruling to the Ninth Circuit, and that appeal remained pending in the firm’s October 22, 2026 update.

Employers should check delayed cases before arranging travel

Employers should review every pending fee-subject petition. A case filed with premium processing and waiting beyond 15 business days may need direct follow-up, Meltzer Hellrung advised.

An approval can open travel options for some candidates abroad. A worker with a valid, unexpired H-1B visa stamp can generally travel with a new employer’s approval notice, often without another consular interview. The employer should confirm the stamp remains valid and check for status problems from a prior stay.

A worker previously counted against the cap, with time remaining on the six-year limit, can usually be petitioned without a new cap selection. But the worker cannot begin the job before approval.

H-1B portability is unavailable to a worker outside the United States. While a petition is pending, an employer may be able to engage the person as a contractor or through an employer of record abroad.

DHS has described exceptions as extremely rare. Employers may submit a request with supporting documentation to H1BExceptions@hq.dhs.gov. Del. Kimberlyn King-Hinds wrote to Homeland Security Secretary Kristi Noem in October 2025 about the payment’s effect on the CNMI.

Two court orders block the fee policies, but the authority dispute remains

The first ruling came from the U.S. District Court for the District of Massachusetts. On June 8, 2026, it vacated the agency policies implementing the payment, finding it constituted a tax the president lacked delegated authority from Congress to impose.

The government asked to pause that judgment during its appeal. On July 24, 2026, the U.S. Court of Appeals for the First Circuit denied the request, leaving the vacatur in effect while the appeal proceeds.

A separate challenge followed in Global Nurse Force v. Trump, No. 4:25-cv-08454. On September 30, 2026, Judge Haywood S. Gilliam Jr. of the Northern District of California found the agencies likely violated the Administrative Procedure Act.

The court concluded the agencies created substantive policies that functioned as legislative rules without required notice-and-comment procedures. It also found likely failures to consider alternatives and employers’ reliance interests, explain the implementation framework, or show reasoned decision-making.

The judge vacated and remanded the policies and barred federal agencies from enforcing or implementing them. Before trying again, agencies must complete notice-and-comment rulemaking and an analysis under the Regulatory Flexibility Act, including the effects on small businesses. The court denied the government’s request for a stay and declined to require plaintiffs to post a bond.

The California ruling did not finally decide whether the president had statutory authority to issue the underlying proclamation. The litigation remains ongoing, and a separate district court ruling in another case allowed the payment to stand.

The administration extended the framework while the court orders remain in place

President Donald Trump issued Proclamation 10973 on September 19, 2025. As implemented by USCIS, Customs and Border Protection, and the State Department, it primarily affected workers abroad who needed consular processing or admission at a U.S. port of entry.

Trump signed Proclamation 11069 on September 18, 2026, extending the framework for another 12 months. It took effect at 12:01 a.m. eastern daylight time on September 21, 2026, and is scheduled to expire at 12:00 a.m. eastern daylight time on September 21, 2027, unless extended again.

The renewed proclamation covers certain workers entering or seeking admission after its effective date, including people who need admission to make an approved petition effective. It directs DHS to restrict decisions on unpaid petitions for workers outside the country and tells employers filing for beneficiaries abroad to obtain and keep payment documentation.

DHS may exempt an individual, all workers at a company, or an industry if it determines the hiring serves the national interest and does not threaten U.S. security or welfare. The proclamation says the payment had been made for over 700 petitions and argues the H-1B program has been used to replace American workers with lower-paid labor.

The extension does not explain how agencies should handle affected cases while the vacatur remains in effect. USCIS’s website had not been updated after the extension and continued to say the payment was not owed at that time while DHS complied with the First Circuit order.

Separate H-1B proposals and reviews are moving on their own tracks

A separate DHS proposal would set a $103,265 fee for cap-subject petitions. Its comment period closed on September 24, 2026, but DHS has not issued a final rule. The California court order does not affect that rulemaking.

A separate executive order, also signed on September 18, 2026, directs the secretaries of State, Labor and Homeland Security to consider whether employers laid off similarly situated U.S. workers in the prior year or plan future layoffs. The review may inform labor condition applications, petitions, visa applications and decisions on entry.

Those officials may coordinate with Commerce, Education and the Small Business Administration for wage, employment, academic, industrial or other economic information. Under INA § 212(n)(2)(G), the Labor Department may review previously submitted labor condition applications, with investigations possibly beginning within 30 days of publication.

The Labor Department’s non-displacement provisions apply to H-1B-dependent employers, not all employers. That category includes employers with 25 or fewer full-time equivalent employees and at least eight H-1B workers; those with 26–50 employees and at least three H-1B workers; and those with 51 or more employees and at least 15% of staff in H-1B status. The proclamation makes no similar distinction.

The administration also cites a weighted-selection rule published December 29, 2025, for the FY 2027 cap season, and a Labor Department wage proposal published March 27, 2026. The first, 90 Fed. Reg. 60864, prioritizes higher-skilled and higher-paid applicants; the second, 91 Fed. Reg. 15454, proposes changes to prevailing-wage protections.

Congress has a separate proposal. S. 4087, in a version dated 2026-03-12, would exempt public-school and public-school-district employees from the payment requirement.

The California court set its next case management conference for October 27, 2026. The parties’ joint case management statement was due October 20, 2026.