The $100,000 H-1B Fee Was Just Struck Down — Why the EB-5 Case for H-1B Holders Hasn’t Changed

On June 8, 2026, a federal judge had the $100,000 H-1B fee struck down, vacating nationwide the surcharge the administration had imposed on new petitions since September 2025. For H-1B workers and their employers, it is welcome relief. It is also not the end of the story: the government has said it will appeal, and a separate federal court had already upheld the same fee in a parallel case. The cost of an H-1B petition is, for now, unsettled — and uncertainty is exactly the condition that has pushed skilled professionals toward residency they control. The deeper point is structural. Whatever happens on appeal, an H-1B remains an employer-sponsored, lottery-allocated, time-limited status sitting behind a green-card backlog measured in decades for Indian nationals. That is why, even with the $100,000 H-1B fee struck down, the case for EB-5 has not changed.

1. What the June 8, 2026 Ruling Actually Did

The June 8, 2026 ruling vacated the $100,000 H-1B fee nationwide, holding that the payment functioned as a tax — something only Congress can authorize — rather than a regulatory fee the executive branch could impose on its own.

1. One district court, with an appeal pending. U.S. District Judge Leo Sorokin in Massachusetts issued the decision in a suit brought by a coalition of 20 state attorneys general. The administration has said it will appeal.
2. A conflicting ruling already exists. In December 2025, a federal court in Washington, D.C. upheld the same fee in a separate challenge, itself now on appeal. Two courts have reached opposite conclusions.
3. The fee’s status is unsettled, not settled. The surcharge — which had raised petition costs from a few thousand dollars to $100,000 — is vacated today, but its future depends on the appeals now in motion.
4. The program itself is unchanged. The ruling addressed the fee, not the H-1B structure: 65,000 visas a year plus 20,000 for advanced-degree holders, granted for three to six years.

2. Why the Ruling Doesn’t Change the Structural Case

The fee was never the core reason H-1B holders look at EB-5. The structural limits of the visa — the ones a fee ruling cannot touch — are what drive the decision.

1. Employer dependence. An H-1B is tied to a sponsoring employer. A layoff starts a 60-day clock to find a new sponsor or leave the country — a vulnerability no court ruling removes, and the reason a growing number of professionals build a backup plan.
2. Selection is not sponsorship. Allocation has shifted from a random lottery toward a weighted, wage-based model, and demand still far exceeds the annual cap. Being sponsored is not the same as being selected.
3. The green-card backlog is untouched. For Indian nationals, the employment-based wait runs into decades, and the EB-2 category has tightened sharply in 2026.
4. Costs can return. With one court upholding the fee and an appeal underway, the $100,000 surcharge could be reinstated. Planning around a number that may reappear is not planning.

3. What EB-5 Offers That H-1B Cannot

EB-5 answers the H-1B holder’s core problem directly: it is a path to permanent residency that does not depend on an employer, a lottery, or an annual cap that demand has already overwhelmed.

1. Employer-independent residency. EB-5 is self-petitioned. Your status does not end with a job, and a layoff does not start a 60-day countdown.
2. A backlog-free lane, for now. The reserved set-aside categories — including rural — remain current for all countries, including India and China, bypassing the EB-2/EB-3 wait that has left EB-2 India unavailable through the fiscal year.
3. Concurrent filing. For applicants already in the U.S. with a current category, concurrent filing of the I-526E with Form I-485 can produce work and travel authorization in months — not tied to any employer.
4. A deadline that rewards acting now. The September 30, 2026 grandfathering deadline protects petitions properly filed on or before that date, even if the program changes afterward.

4. Key Questions Before You Decide

1. Is my status genuinely secure right now? If a layoff would start a 60-day clock, the fee ruling does not change your underlying exposure.
2. Which category is current for my country of birth? Reserved set-asides are current for India and China. Confirm the project’s set-aside basis before relying on that timeline.
3. Can I file concurrently today? It depends on your category being current and your maintaining valid status in the United States.
4. Is the project I-956F approved? USCIS project-level approval means the business plan and job-creation model were reviewed before capital was committed.
5. What is my runway to September 30, 2026? Source-of-funds preparation can take weeks to months. The deadline rewards documents that are ready, not intended.

Summary: H-1B vs. EB-5 After the Fee Ruling

The Bottom Line: A vacated fee is a headline; an unprotected status is the reality underneath it. The June 8 ruling lowers the price of an H-1B today, but it does not make the visa employer-independent, does not clear the green-card backlog, and does not survive the appeals ahead with any certainty. For skilled professionals who have spent years inside that uncertainty, the more durable response is the one the policy swings keep pointing to: secure permanent residency you control. Whether the $100,000 H-1B fee stays struck down or is reinstated, that calculation is the same.

Beyond International Group serves as a fiduciary NCE Manager — backed by an institutional fund platform — applying the same underwriting and oversight discipline to your EB-5 filing that we apply to every fund we manage.

If you are seeking an EB-5 project with a reserved-category structure and a documented filing pathway ahead of the September 30, 2026 deadline, Beyond Paradise 1 is an opportunity not to be missed.

Schedule a Free Consultation Today.