Last week, I received a call from a colleague. The company hasn't decided yet whether to proceed with the H-1B lottery next year.

The reason is simple: the $100,000 fee. The HR and legal teams are all just waiting to see what happens.

It can be confusing just looking at the news. One side says it has been extended, while the other says the court has blocked it. Today, I will sort this out in order.

The starting point is Proclamation 10973, which came out last September. It mandated a $100,000 fee for new H-1B petitions, originally set for one year.

However, on September 18 of this year, the President signed Proclamation 11069. This extended the deadline by another 12 months until September 21, 2027.

From this alone, it seems the fee will continue for another year. But the actual situation on the ground is a bit different.

The first setback came from the Federal District Court in Massachusetts. On June 8 of this year, the court ruled that the government's policy enforcing this fee was illegal and invalidated it.

The government immediately appealed and requested a stay of enforcement. However, on July 24, the First Circuit Court of Appeals denied that request.

The second setback occurred on September 30 in the Northern District Court of California. This ruling is significant because it included not only the original proclamation but also the extension.

The court determined that the government could not collect this fee without going through the notice and comment, or formal rule-making process. Therefore, the fee is currently not being collected.

Many immigration law firms are updating their clients with the same information.

It's important not to get confused here. The court blocked the enforcement policy of the government agency, not the proclamation itself.

In simple terms, the proclamation remains valid until 2027 on paper. However, the tools to enforce it are currently tied up in court.

And the litigation is not over yet. Depending on the outcome of the appeal, collection could resume, and USCIS has indicated that they would collect once the court's order is lifted.

This is not the end. DHS introduced a separate regulation in August, proposing to charge $103,265 per H-1B petition selected for the lottery.

This regulation is on a different track than the proclamation. Therefore, the recent court rulings have not blocked this proposal.

The comment period ended on September 24, and the final regulation has not yet been released. There is no set date for its implementation either.

Honestly, I sighed at this point. As the court insists on following procedures, it seems they are now pushing a similar fee through formal procedures.

Employers that are cap-exempt, such as universities or non-profit research institutions, are excluded from this regulation. Extensions or changes for individuals already caught in the cap are also exempt.

So what should we do now? Let's first look at it from the employer's perspective.

First, don't give up on the lottery schedule for next March just because of the fee news. The starting point is that they are not currently collecting the $100,000 fee.

Second, it's a good idea to clearly specify who will bear the fee in the contract or offer letter. If the situation changes, having this predetermined can reduce disputes.

Third, if the candidate is overseas, they may be more affected than someone already in the U.S. because the proclamation was originally designed as an entry restriction.

Now for the workers. If you already have an H-1B and are working in the U.S., first check whether your extension or company transfer is subject to the cap.

If you are an F-1 student, it's practical to plan how to use your OPT and STEM OPT periods. Buying time is a strategy in itself.

Marking your graduation date and the lottery date on the calendar can help you get a sense of timing.

Considering employment at cap-exempt institutions is also a viable option. Positions at university hospitals or research institutes are more diverse than you might think.

Also, consider other pathways like O-1 or direct green card options. However, since the eligibility requirements vary greatly, don't make decisions alone; be sure to consult with an immigration attorney.

To add my thoughts, I believe that reforming the skilled worker system is necessary. The issue is that the amounts involved are only sustainable for large companies.

Small businesses or startups will simply give up in the face of this fee. From the perspective of equal opportunity, this is disappointing.

In summary, the proclamation has been extended until 2027, the court has blocked enforcement, and a separate regulation is still pending.

If I were in your shoes, I would prepare according to the original plan but check the appeal results and the final DHS regulation announcement weekly. The pace of change is really fast.