The Department of Homeland Security (DHS) has moved quickly to salvage the Trump-era policy that slaps a one-time US $100,000 surcharge on certain H-1B visa petitions. In a June 19 filing with the U.S. Court of Appeals for the First Circuit, government lawyers argued that Judge Leo Sorokin’s June 8 district-court ruling—which struck the fee down as an unconstitutional tax—“misconstrued the president’s broad authority under the Immigration and Nationality Act.” The government is seeking an emergency stay so it can continue collecting the surcharge while the appeal plays out. DHS warned that every day without the fee “allows more aliens to petition and enter the country despite the President’s determination that their entry would be detrimental,” and that revoking visas after the fact would be “difficult, if not impossible.” For employers, the legal uncertainty complicates FY 2027 H-1B budgeting. Multinationals that rely on consular processing for overseas hires must now decide whether to pre-pay the US $100,000 in case the stay is granted, or hold off and risk time-line delays if the fee is ultimately reinstated. Companies that move talent through change-of-status filings inside the United States are unaffected by the surcharge but still face knock-on scheduling issues at heavily backlogged U.S. consulates. Immigration counsel are advising clients to “stress-test” their mobility budgets at both price points and to build extra processing time into fall start-dates. If the First Circuit reinstates the fee—likely within weeks given the fast-track briefing schedule—employers may need to wire six-figure payments on short notice. Conversely, if the district-court ruling stands, petitioners that have already paid will need refund strategies. Although two similar challenges are pending in the D.C. Circuit and Northern District of California, the Boston appeal will set the first appellate precedent. A decision either way will shape corporate mobility planning well beyond New England, as roughly one-third of all new H-1B petitions involve beneficiaries who must process at a U.S. post abroad.
Source: Bloomberg Law
