Labor & Employment Law Daily Wrap Up, IMMIGRATION—1st Cir.: District court order against Trump’s $100,000 H-1B visa policy stands, (Jul 27, 2026)

By Jason Albright, J.D.

On September 19, 2025, President Trump issued a proclamation requiring that a $100,000 payment accompany each H-1B petition.

The federal government is not entitled to a stay pending appeal of a district court order and final judgment that vacated actions taken by officials at the Department of Homeland Security and Department of State to implement a presidential proclamation requiring that a $100,000 payment accompany all H-1B visa petitions, the First Circuit held. Applying Nken v. Holder, 556 U.S. 418, 427 (2009), the appeals court found that the government had not made a “strong showing” that it is likely to succeed in challenging the plaintiffs’ excess-of-statutory-authority APA claim on the merits. Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 224 (1989) sets forth a requirement for the executive to show that Congress spoke “clearly” in conferring “discretionary authority to recover administrative costs not inuring directly to the benefit of regulated parties by imposing additional financial burdens, whether characterized as ‘fees’ or ‘taxes,’ on those parties,” no relevant H-1B-related statutory provision references the imposition of the kind of payment requirement at issue, and the government failed to explain why such a clear statement was not required here (State of California v. Mullin, No. 26-1699 (1st Cir. July 24, 2026)).

H-1B visa program. The H-1B program, according to the court, permits employers to petition the government for temporary visas that allow nonimmigrant foreign workers in “specialty occupation[s],” which usually require at least a bachelor’s degree, to work in the United States. See 8 U.S.C. § 1184(c), (i).

Trump’s proclamation. On September 19, 2025, President Trump issued a proclamation requiring that a $100,000 payment accompany each H-1B petition. To implement the $100,000 payment requirement, the proclamation directs (1) the Secretary of Homeland Security to “restrict decisions” on H-1B petitions “not accompanied by a $100,000 payment” for individuals “who are currently outside the United States,” while also permitting the Secretary, at his discretion, to make exceptions to the payment requirement for certain individuals, companies, or industries; (2) the Secretary of State to limit H-1B petition approvals to those petitions accompanied by the $100,000 payment; and (3) both Secretaries to “coordinate to take all necessary and appropriate action to implement th[e] [P]roclamation and to deny entry” to H-1B petitioners whose petitions do not satisfy the $100,000 payment requirement.

Sections 1182(f) and 1185(a). President Trump claimed authority to require the $100,000 payment under two provisions of the Immigration and Nationality Act (INA) that are codified at 8 U.S.C. §§ 1182(f) and 1185(a). Section 1182(f) provides that “[w]henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

Section 1185(a), in turn, permits the president to implement—upon the departure and/or entry of any “alien”—"reasonable rules, regulations, and orders” and “limitations and exceptions.”

Proclamation’s rationale. The proclamation finds that some employers had “abused” the H-1B program, leading to various negative labor market outcomes for U.S. workers, including lower wages and “large-scale replacement” by foreign workers, thereby undermining the “economic and national security” of the United States.

Implementation. Between September 19, 2025, and October 20, 2025, officials at the Department of Homeland Security (DHS) and the State Department took ten different actions (collectively, the policy) to implement the proclamation. The actions included the State Department’s issuance of answers to “Frequently Asked Questions,” which noted that the proclamation’s payment requirement applied prospectively, and DHS’s issuance of a revised fee schedule, which set forth the new $100,000 payment requirement.

Lawsuit. On December 12, 2025, California and 19 other states filed suit, challenging the federal government’s implementation of the proclamation under the APA and the Constitution. The states alleged, and the district court found, “that the imposition of the $100,000 H-1B payment requirement negatively impacts [the plaintiffs'] ability to staff publicly run colleges and universities, primary and secondary schools, and healthcare systems.” Those impacts would then, as the district court put it, “exacerbate staffing shortages in these sectors and endanger [p]laintiffs' ability to provide important medical and educational services.”

APA claim. With respect to the APA, the states alleged that the defendants violated that statute’s procedural requirements under 5 U.S.C. § 706(2)(D); its bar on arbitrary-and-capricious final agency actions under 5 U.S.C. § 706(2)(A); and its bar on final agency actions taken in excess of statutory authority under 5 U.S.C. § 706(2)(C).

The states (1) sought a declaratory judgment stating that the policy “is unlawful because it exceeds the executive branch’s constitutional and statutory authority”; (2) asked the district court to vacate and set aside the policy under 5 U.S.C. § 706(2); and (3) sought an injunction barring the defendants “from taking any actions with respect to Plaintiff States, their agencies, or their political subdivisions intended to give effect to the Proclamation or Policy.”

Vacated. On June 8, 2026, the district court granted the states’ motion for summary judgment, denied the defendants’ cross-motion, and declared “[t]he Policy implementing the Proclamation... unlawful and... VACATED [it],” under 5 U.S.C. § 706(2), “in its entirety.”

Motions to stay. The defendants then filed a motion requesting that the district court: (1) stay its order and judgment pending the defendants’ appeal to the First Circuit or, alternatively, (2) enter an administrative stay of the order and judgment while the defendants sought emergency relief from the First Circuit. The district court declined to stay its order and judgment pending appeal but administratively stayed the order pending the federal appeals court’s resolution of the defendants’ emergency stay motion, now before the First Circuit.

Nken. Denying the motion to stay, the federal appeals court observed that, under Nken v. Holder, 556 U.S. 418, 427 (2009), a party seeking the “extraordinary relief” of a stay bears the burden of satisfying a four-factor test that asks (1) whether the defendants have “made a strong showing that [they are] likely to succeed on the merits of [their] appeal”; (2) whether they “will be irreparably injured absent a stay”; (3) “whether issuance of the stay will substantially injure the other parties interested in the proceeding”; and (4) “where the public interest lies.” The appeals court found that the federal government failed to meet its burden as to the critical first factor.

Skinner.Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 224 (1989), the First Circuit observed, sets forth a requirement for the executive to show that Congress spoke “clearly” in conferring “discretionary authority to recover administrative costs not inuring directly to the benefit of regulated parties by imposing additional financial burdens, whether characterized as ‘fees’ or ‘taxes,’ on those parties,” and the federal government failed to explain why such a clear statement was not required here.

The INA? The government argued that, assuming that this clear-statement requirement applied, “the delegation [in §§ 1182(f) and 1185(a)] is sufficient to include a tax,” but the First Circuit was unpersuaded. “[N]either § 1182(f) nor § 1185(a), nor any other relevant H-1B-related provision,” the appeals court noted, “references the imposition of the kind of payment requirement at issue.…” Indeed, as the district court had noted, “Congress’ pattern of usage suggests that when it imposes fees or delegates fee-imposing authority under the INA, it does so explicitly.” Finally, the First Circuit noted, “the defendants do not dispute that neither § 1182(f) nor § 1185(a) has ever been used to impose a fee or payment of this kind.”

Finding that the remaining Nken factors presented, “at most, a mixed picture,” the federal appeals court denied the defendants’ motion to stay pending appeal.

The case is No. 26-1699.

Judge: Per Curiam.

Attorneys: Jeanelly Orozco Alcalá, California Attorney General’s Office, for State of California. Julia S. Canney, Massachusetts Attorney General’s Office, for Commonwealth of Massachusetts. Joshua Nomkin, Arizona Attorney General’s Office, for State of Arizona. Jeffrey Alderette, U.S. Department of Justice, for Markwayne Mullin and U.S. Department of Homeland Security.

Companies: State of California; Commonwealth of Massachusetts; State of Arizona; U.S. Department of Homeland Security

Cases: Immigration RemediesDamages Procedure AgencyNews MaineNews MassachusettsNews NewHampshireNews PuertoRicoNews RhodeIslandNews GCNNews