What the $100,000 Proclamation Actually Did
The $100,000 H-1B payment was not introduced as the same kind of measure as DHS’s proposed $103,265 fee. It came from a presidential proclamation framed as a restriction on entry, then acquired its practical force through implementation by the Department of Homeland Security and the Department of State. The useful question is therefore how that policy moved from presidential action to agency practice, and what the First Circuit’s July 24, 2026 order actually decided about it.
From presidential proclamation to agency policy
On September 19, 2025, President Donald Trump issued Presidential Proclamation 10973, titled “Restriction on Entry of Certain Nonimmigrant Workers.” The proclamation required a $100,000 payment to accompany each H-1B petition. But the court’s description shows that the payment was not just an added invoice at the front of an ordinary filing. It was embedded in a set of directions about whether the government would approve a petition and admit the person for whom it was filed.
The proclamation directed the Secretary of Homeland Security to restrict decisions on H-1B petitions that were not accompanied by the payment when the relevant individuals were outside the United States. It also allowed the Secretary to make exceptions for certain individuals, companies, or industries. The Secretary of State was directed to limit approvals to petitions accompanied by the payment. DHS and the State Department were told to coordinate implementation and deny entry when the requirement was not satisfied.
That sequence matters because a presidential proclamation and an agency implementation policy are different legal objects. The proclamation supplied the presidential directive. Agency officials then translated that directive into operating decisions, including answers to frequently asked questions and a revised DHS fee schedule. The First Circuit says officials at DHS and the State Department took ten different implementation actions between September 19 and October 20, 2025. The court collectively called those actions “the Policy,” following the states’ terminology.
The asserted legal authority also pointed toward entry rather than ordinary cost recovery. The proclamation relied on sections 212(f) and 215(a) of the Immigration and Nationality Act, now codified at 8 U.S.C. sections 1182(f) and 1185(a). Section 1182(f) allows the President, after finding that entry by an alien or class of aliens would be detrimental to U.S. interests, to suspend entry or impose restrictions for as long as the President considers necessary. Section 1185(a) allows the President to prescribe reasonable rules, regulations, and orders concerning an alien’s departure or entry, subject to limitations and exceptions.
In plain terms, the government’s theory was that a payment could be made an additional condition for entering the United States as an H-1B worker. The stated rationale, as the First Circuit recounted it, was that some employers had abused the program, producing lower wages and large-scale replacement of American workers and thereby undermining economic and national security. Whether those findings justified the particular payment is a separate question from what the proclamation was designed to accomplish. The policy sought to control admission based on a presidential finding about entry and national interest.
The timing described in the later NPRM is also conditional. DHS says the proclamation payment applied to certain H-1B petitions filed on or after September 21, 2025, and before September 21, 2026, unless the proclamation was extended. That same rulemaking says the proclamation would expire before the proposed $103,265 fee could take effect unless extended. The dates help show that the proclamation was a time-bounded instrument; they do not establish that its implementation remained enforceable after the litigation described below.
The states’ challenge and the district-court vacatur
The litigation began with a practical objection to the entry-focused policy. On December 12, 2025, twenty states sued the federal officials and departments involved in implementation. They alleged that the policy violated the Administrative Procedure Act, exceeded statutory authority, and was unconstitutional. The states said the $100,000 requirement made it harder for publicly run colleges and universities, primary and secondary schools, and healthcare systems to staff themselves. The district court found that those effects could worsen shortages and endanger the states’ ability to provide important medical and educational services.
The states’ legal claims included three Administrative Procedure Act theories: inadequate procedure, arbitrary and capricious agency action, and action taken beyond statutory authority. They asked for a declaration that the policy was unlawful, an order vacating it under 5 U.S.C. section 706(2), and an injunction against actions intended to give effect to the proclamation or its implementation.
After the parties filed cross-motions for summary judgment, the District of Massachusetts held a hearing on May 29, 2026. On June 8, it granted the states’ motion, denied the government’s cross-motion, and declared the policy implementing the proclamation unlawful and vacated it “in its entirety.” The government then asked the district court to pause that judgment while it appealed. The district court refused an ordinary stay but temporarily held its order while the government sought emergency relief from the First Circuit.
That procedural detail is easy to lose in a headline. The district court’s vacatur was a judgment about the agency policy that implemented the proclamation. The government’s emergency request did not ask the First Circuit to decide the entire appeal immediately. It asked the appellate court to suspend the effect of the judgment while the merits appeal continued. The difference between those requests shaped the First Circuit’s analysis.
Why the First Circuit denied a stay
A stay is an extraordinary pause in the ordinary process of judicial review. The First Circuit applied the four-factor test from Nken v. Holder: whether the moving party has made a strong showing that it is likely to succeed on the merits, whether it will suffer irreparable injury without a stay, whether a stay would substantially injure other interested parties, and where the public interest lies. The court noted that the first two factors are the most important.
The judges focused first on the government’s likelihood of success against the states’ claim that the policy exceeded statutory authority. The district court had reasoned, relying on Skinner v. Mid-America Pipeline Co., that Congress must speak clearly when the executive claims authority to recover administrative costs by imposing a financial burden that does not directly benefit the regulated party. The district court viewed the features of the $100,000 payment as making it resemble a tax. The government disagreed. It argued that the payment was an immigration regulation, not a tax, and that Congress’s constitutional powers allowed that kind of regulation.
The First Circuit said Skinner was relevant whenever the executive claims discretionary authority to recover administrative costs through additional financial burdens, whether those burdens are called fees or taxes. The court treated the central question as whether Congress had clearly delegated the authority—not whether Congress may delegate such authority in the abstract.
The government relied on Federal Energy Administration v. Algonquin and the broad wording of section 1182(f). In Algonquin, the Supreme Court had upheld payments under a statute authorizing the President to take action deemed necessary to adjust imports. The government argued that section 1182(f)’s power to impose “any restrictions” was even broader, and that a payment was simply an additional qualification for entry.
The First Circuit was not persuaded that this was enough for a strong showing. It noted that the statutory provisions in Algonquin included not only broad discretion but also an explicit reference to the duties the President wanted to impose. Neither section 1182(f) nor section 1185(a), the court said, expressly referred to imposing this kind of payment. The court also discussed the Supreme Court’s then-recent decision in Learning Resources, Inc. v. Trump, which treated “regulation” as not including a tax in the relevant context. The government had not explained why the same pattern of statutory usage would not matter for the word “restriction.”
The court found another problem in the Immigration and Nationality Act’s own structure. When Congress has authorized immigration fees, it has often done so expressly and has specified how the money is collected or used. The First Circuit pointed to provisions addressing fees for petitions, fraud prevention, and full-cost recovery for adjudication and naturalization services. Neither section 1182(f) nor section 1185(a), the court observed, had previously been used to impose a payment of this kind. These points did not constitute a final merits ruling, but they made it difficult for the government to show a strong probability of prevailing at the stay stage.
The government separately argued that the agency implementation was not “final agency action” reviewable under the Administrative Procedure Act. Its position was that officials were merely exercising discretion delegated to the President, and that the proclamation—not the agency policy—set the payment, so no separate rights or obligations had been determined.
The First Circuit identified a practical tension in that argument. To show irreparable harm, the government said that every day the vacatur remained in place allowed more people to petition and enter the country. But that claim was hard to reconcile with saying that the implementation policy did not itself impose obligations. The court also noted that the government had not grappled with Agatha v. Trump, which stated that agency action carrying out a presidential directive is ordinarily subject to Administrative Procedure Act review. The government’s final-agency-action argument therefore did not provide the required strong showing either.
The court then addressed the remaining stay factors briefly. It assumed that the government had sufficiently shown possible irreparable harm if the policy remained vacated. But the government had not adequately shown why the states would not suffer substantial injury from a stay. Its arguments focused on whether the states could later recover interim costs and asserted, without much development, that any injury would be minimal. On the public-interest factor, the government pointed to the labor-market harms the proclamation was meant to address, but did not explain why a stay would not also cause the public harms the states attributed to the payment requirement.
The result was a denial of the motion to stay the district court’s June 8 order and judgment. The government had not met the critical likelihood-of-success standard, and its arguments on the remaining factors produced at most a mixed picture.
What this order does not tell us
The First Circuit’s decision has a clear practical consequence in the supplied record: it left the district court’s vacatur in place while the merits appeal continued. But it does not mean the First Circuit had finally resolved every question about the proclamation. It does not turn the stay ruling into a final merits judgment, and it does not decide whether a different payment created through a different statutory and regulatory framework is valid.
That last boundary is essential for understanding the proposed $103,265 fee. DHS’s NPRM relies on fee-recovery provisions such as sections 286(m) and 286(n), while the proclamation policy relied on sections 1182(f) and 1185(a). The First Circuit’s warning about the need for clear authority concerned the proclamation’s entry-restriction theory. It may make legal authority a central issue for any future challenge to the proposed fee, but the order itself does not answer that challenge.
The earlier payment is therefore best understood as a contested entry policy whose implementation was vacated and whose stay was denied—not as the first installment of the later proposed fee. The next comparison can now be made on firm ground: what each instrument was authorized to do, which H-1B cases it reached, when its payment was triggered, and what status it held.