United States | First Circuit Court of Appeals denies motion to reinstate $100,000 H-1B petition requirement pending appeal

The First Circuit Court of Appeals denied the federal government’s motion to stay a lower court ruling to vacate the $100,000 H‑1B payment requirement while the case is appealed.

Key takeaways:

The policy requiring a $100,000 payment for H-1B visa petitions continues to be blocked. After 20 states challenged the policy, the U.S. District Court for the District of Massachusetts, in its June 8 decision, found that the $100,000 H-1B petition payment was not authorized under existing law and vacated the policy in its entirety. The Trump administration filed a motion to stay its order pending appeal, which the First Circuit Court denied.

The First Circuit Court denied the federal government’s request to reinstate the policy while the appeal is ongoing, concluding that the government had not shown a strong likelihood of overturning the lower court’s ruling.

• The government argued that the presidential authority to impose “restrictions” on entry includes the power to require the payment. The appeals court emphasized that when the executive branch wants to impose significant financial burdens, Congress must clearly grant that authority.
• The government argued that the policy was not “final agency action” reviewable under the Administrative Procedure Act (APA) because agencies were simply carrying out the president’s directive. The First Circuit found the argument unpersuasive and noted precedent indicating that agency actions implementing presidential directives are ordinarily reviewable under the APA.

U.S. Citizenship and Immigration Services is expected to issue revised H-1B filing procedures in response to the court ruling, although it may be several days before formal guidance and implementation details are available.

Additional Information: The Trump administration is expected to renew its motion to stay with the Supreme Court, and to continue its appeal of the federal district court’s ruling. BAL is closely monitoring this litigation and related developments and will continue to provide updates. BAL clients are encouraged to work closely with their BAL teams to determine next steps.

This alert has been provided by the BAL U.S. Practice Group.

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