On July 24, the First Circuit Court of Appeals refused to stay a district court ruling that had already vacated the $100,000 H-1B entry fee back in June. The court's reasoning was narrow and, frankly, hard to argue with: the statutes the administration cited to justify the fee — 8 U.S.C. §§ 1182(f) and 1185(a) — don't mention a payment requirement anywhere in the text, and neither has ever been used to impose one before. You can't retrofit a fee power onto a statute that was never written to contain one, no matter how good the policy goal behind it is.
And I did want this fee to survive. A meaningful cost on cap-subject H-1B petitions is one of the few blunt instruments that actually changes employer behavior at scale — it makes the low-wage, high-volume registration strategy more expensive, which is exactly the strategy the wage-weighted lottery I praised earlier this week was also designed to blunt. Losing the fee doesn't just lose revenue. It loses one of the two levers currently working in the same direction.
But I'd rather lose this fight on the merits than win it by executive fiat that doesn't survive judicial review. The administration built this on a legally shaky foundation — using immigration-suspension authority to impose what functions as a tax — and got exactly the outcome you'd expect from cutting that corner. If DHS wants a durable H-1B fee, it needs Congress to actually legislate one, with the statutory hook to survive a challenge, instead of stretching an executive order past what it can bear and hoping the courts don't notice.
Proclamation 10973, the underlying order, expires September 20 regardless of how the appeal resolves. The government can seek emergency relief from the Supreme Court, or let the clock run out and try again with something built to last. Either way, the lesson here isn't "the courts are blocking immigration enforcement." It's "shortcuts get struck down," and conservatives who actually want durable policy should be the first ones saying so.