The states that already beat the $100,000 H-1B payment in court have put DHS on notice that they will fight its replacement. On September 24, 2026, the last day of the comment period, a coalition of 22 attorneys general filed a 24-page comment letter against USCIS’s proposed $103,265 fee on cap-subject H-1B petitions (docket USCIS-2026-0298). California Attorney General Rob Bonta and Massachusetts Attorney General Andrea Joy Campbell co-led the filing. The other signers are Arizona, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Virginia, Washington and Wisconsin. The letter ends by urging USCIS to withdraw the rule.
Why this filing matters more than most comments. Twenty of these states sued over the 2025 $100,000 payment on December 12, 2025, in California v. Mullin. On June 8, 2026, the federal district court in Massachusetts vacated that policy. It held that the payment was a tax, which only Congress can levy, and that it also violated the Administrative Procedure Act. The government appealed (1st Cir. No. 26-1699), but the First Circuit refused to pause the ruling, finding the government had not made “a strong showing” that it was likely to win. The new letter goes through the same arguments point by point. That makes it read like a preview of the lawsuit these states could file if DHS finalizes the rule.
The core legal arguments:
- It is still a tax. USCIS now cites INA §286(m), the provision that lets it set fees to recover adjudication costs. The states say a $103,265 charge bears no relation to the cost of processing a petition. They also note that the Massachusetts court already found that §286(m) did not authorize the earlier payment.
- Public employers get no relief. The proposal exempts cap-exempt employers, meaning universities, affiliated nonprofits and research organizations. Most public school districts and non-research hospitals are cap-subject, so they would pay the full amount. North Carolina says its local school districts employed at least 1,100 H-1B teachers in rural and high-poverty areas at the start of the 2025-26 school year. It warns that it may be unable to meet federal education requirements without them.
- It reaches people already in the U.S. Unlike the 2025 policy, the proposal applies to change-of-status petitions. That includes F-1 students and trainees moving to H-1B, the pipeline many schools and clinics hire from.
- The comment period was too short. DHS allowed 30 days, from August 25 to September 24, for a rule the states say imposes direct costs of nearly $9 billion a year. It overlapped with eight related rulemakings, and Executive Orders 12866 and 13563 generally call for 60 days. The states also point out that the proposal does not address the September 18 proclamation (Proc. 11069), which renewed the separate $100,000 entry restriction through September 2027.
What happens next. The comment period is over, so DHS must now review and respond to more than 11,700 comments before it can send a final rule to the White House for OIRA review. There is no deadline for that. A final rule would need an effective date, and the states’ letter makes a court challenge soon after publication very likely. The earlier $100,000 policy was vacated about six months after the states sued. The fee is not in effect today, and nothing changes for current H-1B holders or pending petitions.
What it means for you. If you are an F-1 student or OPT worker hoping to enter the FY2028 H-1B lottery (registration expected March 2027), your employer may face the fee if it becomes final before then. Litigation could also block it. Plan for both outcomes. Ask your employer now whether it would still sponsor you at that price, and whether you work for a cap-exempt employer. This uncertainty is also why many H-1B hopefuls are looking at green-card routes that do not depend on the lottery or an employer’s budget. The EB-2 National Interest Waiver and EB-1A can be self-petitioned without a job offer or PERM labor certification.
Need help with your immigration petition? Visit QuickFiling.us for AI-guided NIW and EB-1A petition preparation.
Source: X (Twitter) @SanDiegoKnight