The $100K H-1B Fee Is Stuck in Court. Your Hiring Plan Shouldn't Be.
By Ravi Kiran, Co-founder, Saileor. Last updated: 16 July 2026. Every legal claim below links to a primary or legal-industry source.
Here is the situation in one paragraph. In September 2025, a presidential proclamation put a $100,000 fee on new H-1B petitions for workers outside the US. On 8 June 2026, a federal court in Massachusetts struck it down. Three days later the administration appealed. The court then stayed its own ruling, which means the fee is back on while the First Circuit decides. Nobody knows when that will be.
If you are a founder trying to hire an engineer, none of that helps you. You cannot build a hiring plan on a court docket.
So let’s do what the immigration lawyers can’t: run the actual numbers on your alternative.
What exactly is the $100K fee, and who pays it?
The fee applies to new H-1B petitions filed after 21 September 2025 for beneficiaries who are outside the United States and need consular processing. It does not apply to people already in the US changing status, such as F-1 students converting to H-1B, or to extensions and amendments.
Translation for founders: if the person you want is already in the US on a student visa, the fee probably doesn’t touch you. If you found a brilliant engineer in Bengaluru and want to bring them to San Francisco, it does. All $100,000 of it, before salary, before legal fees, before they’ve written a line of code for you.
Wait, didn’t a court kill it?
Yes and no. Here is the timeline:
| Date | What happened |
|---|---|
| 21 Sept 2025 | Proclamation imposes $100K fee on new petitions requiring consular processing |
| 8 June 2026 | US District Court, Massachusetts vacates the fee as unlawful |
| 11 June 2026 | Administration files appeal |
| 12 June 2026 | Court stays its own ruling pending appeal. Fee back in force |
| Today | Case sits with the First Circuit. Fee applies while it waits |
So the fee was ruled unlawful and you still have to pay it. That is not a typo. That is US immigration policy in 2026.
The quieter change that matters more
While everyone argued about the $100K, a second change slipped through: the FY2027 lottery is now weighted by wage level. Higher-paid roles get up to four times the entries.
Under DHS projections, a registration at Level I wages, which is what most early-career roles pay, has roughly a 15% chance of selection. Level IV roles clear 61%.
Read that again. If you’re a startup trying to sponsor a promising engineer at a junior or mid-level salary, your odds just dropped to roughly one in seven. Per year. And the earliest a new FY2027 selection can start working is October 2026.
The $100K fee might die in court. The weighted lottery is the structural change, and it specifically shuts out the roles startups actually hire for.
The math, side by side
Say you want a strong mid-level engineer and you’re deciding between sponsoring them into the US or employing them in India through an EOR.
| H-1B route | India via EOR | |
|---|---|---|
| Upfront government fee | $100,000 (while the stay holds) plus standard filing fees | $0 |
| Odds of getting the person | ~15% lottery odds at Level I wages | 100% |
| Time to start date | 6 to 18 months, October start at the earliest | Under 3 weeks from offer to first payroll |
| Annual salary | US market rate, $130K+ for mid-level | ₹15 to 25 lakh, roughly $16K to $26K at today’s ₹96/USD |
| Ongoing cost | Legal renewals, amendment filings | $99/month flat with Saileor |
| Legal risk | Pending First Circuit ruling could change everything mid-plan | Indian employment law, handled by your EOR |
This is not a subtle comparison. One path costs six figures before day one and gives you a one-in-seven chance. The other gives you a signed offer letter this month.
The giants already did this math
Amazon has committed $35 billion to India through the end of the decade. Microsoft, $17.5 billion. Alphabet is reportedly leasing up to 2.4 million square feet of additional office space in Bengaluru, enough for 20,000 people, which would more than double its India headcount.
These companies have immigration teams bigger than your whole startup. They can afford any fee. They are expanding in India anyway, because the constraint was never the fee. It was certainty. India offers a deep talent pool with no lottery, no proclamation, and no docket to refresh.
You don’t need a $35 billion commitment to make the same move. You need one hire.
What this looks like in practice
You interview the same Bengaluru engineer you were going to sponsor. You make an offer. Saileor becomes their legal employer in India, runs payroll, handles PF, gratuity, insurance, and the Labour Codes compliance you’ve never heard of and never need to. They report to you, work your hours overlap, sit on your standup. First payroll inside three weeks.
If the First Circuit eventually kills the fee for good, you’ve lost nothing. You have a great engineer either way, at a fraction of the loaded cost, hired months earlier.
If the fee survives, you’ve saved $100,000 and a year of waiting.
There is no branch of this decision tree where waiting for the court wins.
Run your own numbers
Our India Hiring Cost Calculator shows the full loaded cost of an India hire in 60 seconds, statutory contributions included. If you’re a US company, the Hire in India from USA guide covers the specifics of your corridor.
Or skip ahead and talk to us. We’ll tell you honestly whether EOR is the right structure for your case. Sometimes it isn’t, and we’ll say so.
