Blocked in Court, Extended to 2027: The H-1B Fee HR Can't Plan Around

For a year, the $100,000 H-1B fee was the most expensive line item in international recruiting. Then, in June, a federal judge threw it out. Last Friday, the White House extended it anyway. HR teams now face a policy that is simultaneously blocked and renewed, with a second, even larger fee waiting behind it, and a new rule that ties visa approvals to the company's own layoff history. The honest answer to "what will this cost us next year?" is that nobody knows, and that uncertainty is itself the thing workforce plans now have to absorb.

One Fee, Two Legal Realities

On September 18, 2026, President Trump signed a proclamation renewing the entry restriction and the $100,000 payment requirement for covered H-1B cases for another twelve months, beginning at 12:01 a.m. Eastern on September 21, 2026 and running to September 21, 2027, according to an analysis from immigration firm WR Immigration. The same analysis is careful to note that the extension "does not establish an annual $100,000 bill for every existing H-1B employee." The fee targets new petitions for workers outside the United States, not the people already on payroll.

The complication is that the fee was already struck down. On June 8, 2026, the U.S. District Court in Massachusetts vacated it in State of California v. Mullin, finding that it functioned as an unauthorized tax and violated the Administrative Procedure Act. Collection remains blocked while the government appeals. Washington University's international scholars office summarizes the practical result bluntly: "the $100,000 payment requirement continues to be blocked." The courts are not aligned, either. A case summary tracking the litigation notes that a D.C. federal court upheld the fee in Chamber of Commerce v. DHS in December 2025, and a third case is still pending.

So the fee is legally dormant but politically alive, and an appellate ruling could switch it back on with little warning. For a talent acquisition team budgeting a 2027 requisition for an engineer in Bangalore or Berlin, that is the worst possible planning environment: a $100,000 swing that depends on a court calendar nobody in HR controls.

The Layoff Test Is the Part Nobody Is Budgeting

The fee gets the headlines, but the companion executive order may matter more over time. Titled "Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program," it requires agencies to consider "layoffs within the prior year and planned future layoffs affecting similarly situated U.S. workers" when adjudicating H-1B cases, per the WR Immigration analysis. It also directs the Labor Department to "begin reviewing previously submitted LCA data within 30 days," which means Labor Condition Applications a company already filed can be revisited against its layoff record.

That links two decisions that usually live in different parts of the organization. Workforce reductions are typically planned by finance and HR leadership; visa sponsorship sits with talent acquisition and outside immigration counsel. Under this order, a restructuring that eliminates a set of roles in March can shape whether an H-1B petition for a similar role succeeds in September. Any company that has run a reduction in force in the past year, or has one on the planning calendar, now has to treat its immigration strategy and its workforce planning as one conversation.

Employers Have Already Voted With Their Filings

The market did not wait for the courts. IEEE Spectrum reports that DHS recorded only 85 qualifying H-1B applications subject to the $100,000 charge between September 2025 and February 15, 2026, and processed 87% fewer applications for taxable H-1B visas than the prior year. The policy brief from FWD.us cites DHS's own analysis finding the charge caused a "short-term shock decline of more than 90% in consular H-1B receipts," and notes that only 70 companies actually paid it.

"Some of those jobs might just be relocated abroad, or maybe companies will make more efforts to recruit U.S. workers," said Julia Gelatt of the Migration Policy Institute.

The next escalation is already in motion. DHS published a proposed rule on August 25, 2026 that would impose a $103,265 fee on new cap-subject H-1B petitions, compared with standard filing fees today of $2,225 to $3,595 plus $2,965 for premium processing. DHS itself estimates the cost would exceed 1% of annual revenue for more than 75% of small filers, according to FWD.us, and an employer survey it cites found 15 of 16 H-1B employers would reduce filings, with a median expected reduction of 92.5%. The comment period closes today, September 24. With cap-subject visas limited to 85,000 a year, and USCIS data showing 343,981 eligible registrations for the FY 2026 cap, the demand for international talent has not disappeared. The only open question is where that talent ends up being employed.

That is the shift HR leaders should be planning for. When the domestic sponsorship route costs six figures, or might, the practical alternatives are hiring the same person in their home country through an Employer of Record, building a team in a nearshore market, or rethinking the role so it can be filled locally. Each has its own compliance, cost, and management implications, and none of them can be set up in the week an appellate court rules.

For HR and talent acquisition leaders, the practical response looks like this:

• Budget two scenarios for every overseas H-1B requisition. Model 2027 hiring with the $100,000 fee blocked and with it restored, so an appellate ruling changes a number rather than a strategy.
• Separate new petitions from existing staff. The extension targets new petitions for workers abroad, not current H-1B employees, so don't let the headline trigger unnecessary alarm on your existing team.
• Put immigration counsel in the room for workforce reductions. The executive order ties H-1B review to layoffs from the prior year and planned future layoffs, so a RIF plan is now also a visa decision.
• Audit the LCAs you've already filed. Labor is directed to begin reviewing previously submitted LCA data within 30 days; know what your filings say before a reviewer does.
• Pre-build a hire-in-place option. An Employer of Record relationship in your most common source countries lets you hire the same candidate abroad if sponsorship becomes uneconomic.
• Watch the $103,265 rule, not just the proclamation. A final regulation would be harder to challenge than a proclamation already vacated once, and it would reach every cap-subject petition.

The courts may yet settle whether the $100,000 fee survives. What they won't settle is the planning problem it has created. The companies that come through this cleanly will be the ones that stopped treating H-1B sponsorship as the default route for global talent and started treating it as one option among several.