great news for consular H-1Bs and Mexican visitors, more of the same for everyone else
the $100,000 H-1B is gone (for now)
On **September 19, 2025, **President Trump issued Proclamation 10973, imposing a $100,000 fee on what essentially amounted to new H-1B petitions processed overseas. As we discussed at that time, the administration imposed the payment through a presidential entry proclamation rather than through legislation or ordinary fee-setting rulemaking, relying on authority under the federal statute INA §212(f)—which authorizes the President to suspend or restrict the entry of certain foreign nationals—to override Congress’s detailed statutory framework for H-1B petitions and fees.
Three months later, twenty states challenged the policy in federal court in Massachusetts. After eight months, the district court ruled that the agencies’ implementation—not the proclamation itself—was unlawful and vacated it (i.e., squashed it) nationwide. The court temporarily paused its ruling while the government appealed to the First Circuit and sought a longer stay pending appeal. (An administrative stay was only a short-term measure to preserve the status quo, not a final ruling on the policy’s legality.)
In opposition to the motion, the states asserted public harms imposed by the fee in that that it impaired the ability of public universities, schools, hospitals, and healthcare systems to recruit necessary workers, and would worsen existing staffing shortages: basically, that the implementation of the policy should not be stayed (paused) because of the harm that the states would suffer while the Circuit Court considered the government’s appeal.
On Friday, the First Circuit denied the government’s motion, effectively ruling that the government was likely to lose anyways. The district court concluded that the $100,000 charge functioned as a tax or comparable financial exaction and that Congress had not clearly delegated authority to impose it through INA §§212(f) and 215(a). The First Circuit did not sign on to every part of that reasoning, but nevertheless concluded that the government had not shown a strong likelihood of overturning the district court’s ruling.
Without the ability to implement the policy (was anyway set to expire in September), the government cannot collect the payment, cannot reject petitions for nonpayment, and cannot condition visa processing on proof of payment.
The upshot is that the $100,000 cannot be imposed at present, and will not return at all unless the government wins its appeal: which the First Circuit has already stated will be unlikely. The Massachusetts ruling is not the only litigation involving the fee, however. A separate case brought by the U.S. Chamber of Commerce in the District of Columbia upheld the policy in December 2025, which was appealed to the D.C. Circuit Court Of Appeals. So we have a “circuit split” likely leading to resolution by the U.S. Supreme Court. However, the administration would be unlikely to be able to impose the policy throughout that period.
The First Circuit’s decision does _not _resolve every past dispute about which filings were covered, particularly where an employer already paid, a petition was rejected or delayed, or a case remains in agency processing. As to today, agency guidance remains pending (check here), so we don’t know how USCIS handle petitions submitted during the transition, whether or how there would be refunds or remedies for petitions rejected, delayed, or abandoned due to the fee, or whether the administration will decide to attempt to extend the proclamation after it’s expiration date on September 21. Expect petulance. However, the Pay.gov form created to collect the H-1B payment seems to have been taken down as of yesterday morning.
this week in TPS-based work permits
There is another thrilling chapter in the ongoing saga of Form I-9 reverification for employees with TPS-based A12 or C19 work permits.
Three days prior to the H-1B ruling, the the U.S. District Court for the District of Massachusetts issued more rulings on temporary administrative stays, pausing the provisions of the “One Big Beautiful Bill Act”(OBBA) that:
- shortened expiration deadlines to Temporary Protected Status employment authorization documents (work permits) that had already received longer extensions; and
- prevented USCIS from rejecting an asylum application, terminating associated work authorization, or initiating removal solely because an applicant has not paid the new annual asylum fee.
Thus, TPS beneficiaries whose employment authorization had previously been extended beyond July 22, 2026 may continue to be employed throughout that period of extension. The government’s SAVE and E-Verify systems subsequently reflected that employment authorization for certain Haitian TPS beneficiaries remained extended through July 27, 2026. The court indicated that it expected to issue a further ruling by August 5th.
Employers, HR, and payroll should continue to review the relevant USCIS, E-Verify, and SAVE pages for each relevant employee’s TPS country (we’ve been posting them in prior newsletters). See the USCIS update here.
Now the fine print:
- The order is temporary, and the court may modify or dissolve it.
- TPS validity also remains affected by separate country-specific termination and extension litigation; these rulings do not reverse or delay any terminations of TPS.
- Agency databases and employer-facing guidance may not update simultaneously: keep refreshing.
**pay more for faster visitor visa interviews **
(in your home country) (if that country is Mexico)
The Department of State announced a preference that visa applicants interview in their country of nationality or residence (for both immigrantand nonimmigrant visas), effectuated last fall. Applicants requesting an appointment outside of their home country may face greater difficulty demonstrating eligibility, longer waits, and risk losing fees that cannot be transferred or refunded.
In June, the administration publicly proposed an entirely different policy: a paid scheduling pilot in which applications for visitor visas may pay an additional fee to obtain expedited interviews. This week, the administration announced implementation of premium visa scheduling pilotat U.S. Mission Mexico (the main U.S. Embassy in Mexico City, along with the nine consulates and nine consular agencies), under which applications paying an additional $750 will secure an interview within approximately ten business days (subject to availability).
What the program does not do:
- open up availability to those who are not citizens or residents of Mexico;
- increase the likelihood of approval;
- decrease the likelihood of requests for additional evidence or of administrative processing; or
- eliminate security or social-media screening.
The premium option is available only when it appears in the scheduling system and when a limited premium slot remains available. The pilot is scheduled to run through December 31st, and there is not yet indication of whether it will expand beyond Mexico. Developments [here](https://travel.state.gov/content/travel/en/News/visas-news.html).
ICE arrests domestic flyers
Building off of reports of information-sharing between the TSA and ICE and subsequent arrests, reports continue to roll in of targeted civil immigration arrests of individuals taking domestic flights directly at the airports, with very recent anecdotal evidence confirming the same. While hard information is difficult to obtain, counsel for several individuals has stated that arrests took place over their objections that the arrested individuals had applications pending before USCIS. Organizations are publishing know your rights materials in response.
While this appears to be a new policy and level of enforcement, airports have always created a federal screening environment. Airlines collect passenger information, TSA verifies identity and conducts security screening, and federal law-enforcement agencies may already possess passenger or travel data. ICE does not necessarily need an airline employee to make a separate report before conducting a targeted arrest, but it certainly helps, and the information-sharing appears to have given rise to these incidents. Nevertheless, this is a clear escalation of prior practice and procedures.
legislation to make immigration courts into actual, functioning, 21st century, civilized, real courts
As we’ve been commenting (including, but not limited, to here, here, here, and here), there are real problems with the manner in which the immigration courts function within the Department of Justice rather than the federal court system. Immigration judges operate differently from federal district-court judges, and they can be manipulated over time to serve not as administers of justice but as arms of enforcement.
On July 23, 2026, Senators Kirsten Gillibrand and Dick Durbin announced the Senate version of the Real Courts, Rule of Law Act, which would replace the Department of Justice’s existing immigration-court system with an independent Article I court. (The House version, H.R. 7836, was introduced by Representative Zoe Lofgren on March 5, 2026.)
Immigration judges currently work within the Executive Office for Immigration Review, an agency of the Department of Justice, and exercise authority delegated by the Attorney General. ICE, which prosecutes the cases, sits within the Department of Homeland Security, though as with the DOJ remains part of the executive branch and subject to DOJ supervision and Attorney General review.
The system would move immigration cases outside DOJ to the regular federal court system. Judges would serve fixed judicial terms, be appointment according to merit, maintain greater control over their cases, and be removed only for cause. Courts would retain control over budgets and dockets, and would require far greater transparency. Political interference would be greatly reduced.
We’re unlikely to see this within the next few years, as with any legislation, it must pass both the House and Senate, be signed by the President, and then require substantial time and funding, with new judicial appointments, procedural rules, and the transfer of personnel, records, and pending cases. But it’s a step in the right direction.
yet more enforcement
The fines for overstaying are creeping up to $2,000,000 for some, the administration receives confirmation of its ability to detain illegal entrants for longer and without bond, and “deportation-maxing” becomes official.
lastly
If you received notifications last week that USCIS was automatically revoking your employment authorization documents and terminating advance parole, you’re one of many. This largely involved cases in which the green card had already been issued, though apparently some still had pending applications for work or travel documents. I defer to Hanlon’s Razor.
Matthew Blaisdell, Esq.
Sunset Immigration PLLC
219 36th Street, Ste 511
Brooklyn, NY 11232
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