Fee by Proclamation: Global Nurse Force and the $100,000 H-1B Payment

On September 30, 2026, Judge Haywood S. Gilliam, Jr., of the Northern District of California entered an order in Global Nurse Force v. Trump against the $100,000 payment that Proclamation 10973 attaches to new H-1B petitions.¹ It is the second federal court to set aside the agency materials that collect the payment, after the District of Massachusetts in June, and, by the order’s own account, the third court to rule on the payment at all: the District of Columbia upheld it in 2025, and that judgment is on appeal.

The caption is more careful than any summary: a preliminary injunction granted in part and denied in part, class certification denied, the government’s motion to dismiss denied. For anyone advising an employer, the line between what was granted and what was denied is most of what matters, and it does not run where a quick reading would put it.

IWhat was asked, and what was given

Five employers moved for the injunction: an automotive-parts manufacturer in Michigan, a rural kidney-care practice in North Carolina, a K–12 school on a Sioux reservation in South Dakota, a nonprofit running three tuition-free charter schools, and a staffing agency that places international nurses. They asked the court to enjoin or stay Sections 1, 2 and 3(a) of the Proclamation together with the “Agency Policies” implementing it: memoranda and FAQs issued as the Proclamation took effect, and a USCIS update of October 20, 2025 that told petitioners to pay through Pay.gov and set the criteria for a national-interest exception.² Three of the five also asked the court to certify, provisionally, a class of all U.S. employers subject to the payment.

What they received is stated in the order’s conclusion, and it is worth reading whole:

The Agency Policies are VACATED and REMANDED to Agency Defendants. Agency Defendants, and all persons acting under their direction, are enjoined from enforcing or implementing the Agency Policies made pursuant to or in implementation of Proclamation No. 10973 and its extension in Proclamation No. 11069, until notice-and-comment rulemaking under the APA and regulatory flexibility analyses under the RFA have been conducted.³

What they did not receive is anything directed at the Proclamation. Before reaching the merits, the court announced that “rather than wade into these complex questions in the first instance, the Court addresses Plaintiffs’ claims against the Agency Policies first,” and it never came back to the others. Having granted the motion “to the extent they seek vacatur of the Agency Policies,” it added: “The Court otherwise DENIES the motion at this time.” Whether the President exceeded his authority under 8 U.S.C. §§ 1182(f) and 1185(a), and whether those provisions permit a $100,000 payment at all, remain undecided in the Northern District of California. So does the claim that the agencies acted in excess of their statutory authority: the merits discussion reaches only the arbitrary-and-capricious claim and the procedural claims.

One feature of the posture deserves a flag: vacatur and remand under 5 U.S.C. § 706(2), ordinarily where an APA case ends, were ordered here on a motion for a preliminary injunction, on findings of likely success. The order does not discuss the point; an appeal may.

IIThe route the court took

The reasoning is procedural from start to finish, and the government contested every step.

Standing. The government argued that the employers’ injuries were speculative because none had been refused a national-interest exception. But the exception is discretionary; USCIS itself described it as reserved for the “extraordinarily rare circumstance”; and nothing in the record said when it would be granted. The rural practice had been waiting almost a year for an answer to its request, and the manufacturer since November 2025. Then the court said the thing most likely to outlast this fee:

Defendants’ indefinite delay does not make Plaintiffs’ harm speculative. If that were the case, Defendants could preclude anyone from challenging the Proclamation or Agency Policies by refusing to ever act on a discretionary exception request. The Court declines to adopt an interpretation of standing that could be manipulated this way.⁴

Consular nonreviewability. Rejected: the employers challenged authority, not an individual visa decision — the line the Ninth Circuit drew in Washington v. Trump between “the President’s promulgation of a sweeping immigration policy” and “an executive branch official’s decision to issue or deny an individual visa.”⁵

Reviewability of the agencies’ implementation. This is the heart of the order. The government said the Agency Policies merely carried out the Proclamation and could not be reviewed apart from it. The court found Nebraska v. Su “directly on point.” There the Ninth Circuit reviewed a Labor Department rule implementing an executive order, held that “[n]o language in the APA prevents or excepts review of an agency action that implements a presidential action,” and warned that the contrary view “would shockingly allow Presidents to insulate any desired rulemaking from judicial review with the single stroke of an executive pen.” The government offered two distinctions. The Proclamation left the agencies no discretion — but it directs them to “take all necessary and appropriate action to implement” it and lets the Secretary of Homeland Security except individuals, companies or whole industries. A proclamation issued under § 1182(f), unlike an executive order, has the force of law — but in East Bay Sanctuary Covenant v. Biden the Ninth Circuit had described a proclamation issued under the same two provisions as one that “does not have the force of law” and has “little effect” without the agencies’ implementing rule. The Policies were also final agency action under Bennett v. Spear, as the Massachusetts court had held.⁶

Arbitrary and capricious. Under Su, an agency implementing a presidential directive must still consider alternatives; under Regents, it must weigh reliance interests. The finding is one sentence: “There is no question here that Agency Defendants failed to consider any alternatives or the reliance interests of the regulated parties.” A footnote adds that the agencies “had never increased H-1B fees without advance notice, and had never increased them by anywhere close to this magnitude.” The previous increases were $1,125 in 2024 and $10 in 2019, and every statutory and regulatory H-1B fee combined tops out at $7,595. The government’s best authority, the Supreme Court’s emergency order in Trump v. Orr, was distinguished: the passport statute the Supreme Court cited provides for passports to issue “under such rules as the President shall designate and prescribe,” and the government pointed to no comparable provision here. The court declined to read Orr “as shielding from APA review all agency actions that follow presidential directives.”⁷

Notice and comment. The government conceded that there had been no notice-and-comment rulemaking and no regulatory flexibility analysis, and argued that neither was needed because the Proclamation alone has the force of law. The answer: “Without the Agency Policies, however, the $100,000 fee would not be enforceable.” It was the Policies that decided who pays (new petitions, not renewals), how (through Pay.gov), and on what showing an exception may be had. The agencies “did not simply interpret the Proclamation, but set their own criteria for administering the fee and determining whether to grant exceptions from it.” Those are legislative rules. Neither the good-cause nor the foreign-affairs exception applied: no good-cause finding was made, the one-year rationale was undercut by the extension, and no international consequences were shown.⁸

The last step explains why the same claim has now come out two ways. The District of Columbia court in Chamber of Commerce rejected the notice-and-comment claim under the D.C. Circuit’s harmless-error rule, which requires the party asserting the error to show prejudice. The Ninth Circuit’s rule is different: “it does not matter that notice and comment could have changed the substantive result; the public interest is served from the proper process itself.”⁹ On this claim, the distance between Washington and Oakland is chiefly a difference in circuit law.

IIIThe remedy, read closely

Three features of the decretal language will matter to employers more than anything in the reasoning.

It is not limited to the plaintiffs. The government asked the court to confine relief to the five moving employers. The court declined, relying on Ninth Circuit authority that vacatur of agency action under the APA “does not implicate the Supreme Court’s concerns about ‘universal injunctions’” addressed in Trump v. CASA. That is also why class certification was denied, without prejudice, as unnecessary: the plaintiffs and any putative class members, the court wrote, “are now doubly protected,” because the Massachusetts court had already vacated the Agency Policies and the First Circuit had declined to stay that vacatur.¹⁰

It is effective now. The court waived bond — “The Court exercises its discretion and waives any bond requirement under the circumstances” — and denied the government’s request to stay the order pending appeal.¹¹

It carries its own expiry condition. The injunction runs “until notice-and-comment rulemaking under the APA and regulatory flexibility analyses under the RFA have been conducted.” The order itself records two facts that give that clause content. On August 25, 2026, DHS proposed a rule requiring a fee of $103,265 for H-1B petitions. On September 18, 2026, the President extended the Proclamation for another twelve months, to September 21, 2027.¹²

Put together, the shape of the relief is plain. It is a procedural remedy for a procedural defect. A final rule adopted after notice and comment, accompanied by a regulatory flexibility analysis, would meet the condition on its face, and a challenge to that rule would have to be brought, and decided, on its own record. The arbitrary-and-capricious holding tells the agencies what such a rulemaking will have to confront: alternatives to the payment, and the reliance of employers who built their staffing on the program as it stood.

IVThe other theory: Mullin

The Massachusetts case was brought by twenty states and decided on cross-motions for summary judgment, with final judgment entered. Judge Sorokin’s June 8 opinion takes up the question the Northern District later set aside. The payment, it holds, is a tax and not a penalty: hiring H-1B workers is lawful, so the payment punishes nothing. To the government’s point that H-1B revenue had fallen, the court replied that raising revenue was an obvious purpose of the Policy whether or not it succeeded: “Purpose and effect are different.” Congress may hand its taxing power to the executive only by clear delegation, and §§ 1182(f) and 1185(a) contain none. Their operative words — restrictions, rules, regulations, orders, limitations, exceptions — do not, read in light of the Supreme Court’s tariff decision in Learning Resources, include the power to tax. A footnote puts it in four words: “Taxes are not ‘restrictions.’” The conclusion followed: “the Court finds that the Policy imposes a tax on H-1B petitions without the requisite delegation by Congress.”¹³

On that foundation the court allowed all four counts: separation of powers, notice and comment, excess of statutory authority, and arbitrary and capricious. On statutory authority it took up the agencies’ general fee-setting power, 8 U.S.C. § 1356(m), which permits fees that recover the cost of adjudication: “The $100,000 payment requirement plainly does not constitute an adjudication fee under this statutory provision,” and the government had conceded that the Proclamation “does not impose a fee to cover costs.” The remedy was complete — “The Policy implementing the Proclamation is declared unlawful and is VACATED in its entirety” — with a declaratory judgment and no need for an injunction.¹⁴

On July 24 the First Circuit refused to stay that judgment. It confined its analysis to the excess-of-statutory-authority claim, because that claim, “if sound, in and of itself fully supports the relief that the defendants seek to have stayed during the pendency of their appeal.” On Skinner’s clear-statement rule, the panel answered that “the question here is not whether Congress may delegate the authority in question. It is whether Congress has done so.” When Congress imposes fees under the INA it does so explicitly and says how the money is to be collected and used, and the government did “not dispute that neither § 1182(f) nor § 1185(a) has ever been used to impose a fee or payment of this kind.” The panel also noticed that the government’s claim of irreparable harm — that every day the vacatur stood, more noncitizens could petition and enter — sat poorly with its claim that the Policy imposed no obligations of its own: “the defendants make no effort to square that circle.”¹⁵

Against both stands the District of Columbia’s 2025 decision in Chamber of Commerce, which upheld the Proclamation and its implementation and is now before the D.C. Circuit.¹⁶

VDoes agreement on different grounds make affirmance likelier?

The Editor’s answer: less than it appears, for three reasons.

First, appellate courts review judgments, not tallies. Any Ninth Circuit appeal in Global Nurse Force will turn on Su, East Bay Sanctuary and that circuit’s harmless-error rule; the First Circuit reviews Mullin on a ground where it has already found no “strong showing” of likely success; the D.C. Circuit reviews a judgment for the government. A second district court reaching the same result on another theory adds nothing to the record in any of those appeals.

Second, the two grounds are not equally durable. Mullin’s is a holding about power: if it stands, no amount of process cures it. Global Nurse Force’s is a holding about process and reasoning, and the agencies have already begun the process. If the First Circuit affirms, the Northern District’s order adds little. If the First Circuit reverses, the Northern District’s order protects employers only until a final rule issues.

Third, and most important, the two vacaturs share a premise, and it is where the government’s best appellate argument lies. Each treats the agencies’ memoranda and FAQs as final agency action reviewable in their own right, rather than as the Proclamation’s shadow. The Northern District got there through Su and East Bay Sanctuary; the First Circuit pointed to its own statement in Agatha v. Trump that “agency action that carries out a presidential directive is ordinarily subject to APA review.” The District of Columbia court, by the First Circuit’s account, upheld the agencies’ implementation while expressly declining to enter that “uncertain terrain.” And the Supreme Court’s emergency order in Orr, which both district courts had to account for, held that challengers were not likely to show that the State Department acted arbitrarily “by declining to depart from Presidential rules that Congress expressly required it to follow.” Agreement on two theories does not diversify the risk much when both vacaturs pass through the same gate.¹⁷

What the second decision does accomplish is redundancy, and that is not nothing. The Northern District’s vacatur and injunction stand independently of Mullin. A stay or reversal in the First Circuit would not, by itself, revive the current agency materials; to collect the payment under them again, the government would need relief in two circuits — or a rule that has been through notice and comment. The court’s own expectation, stated at the outset, is that “the United States Supreme Court is likely to eventually provide further clarity.”¹⁸

VIFor employers, for now

Commentary, not advice. The documents support four observations.

As of the order, the court’s own statement is that the Massachusetts vacatur means “the $100,000 fee is no longer in effect,” and the Northern District has now set aside the same materials on a separate footing. Neither court enjoined the Proclamation, which by its extension runs to September 21, 2027.

The document to watch is not either opinion but the proposed $103,265 fee rule. Its adoption would satisfy, on its face, the condition on which the Northern District’s injunction ends, and would move the fight to the question the Northern District left open and the District of Massachusetts answered: whether the executive may impose a payment of this kind without a clear delegation from Congress.

The standing holding travels. On this court’s reasoning, an employer weighing a challenge to a final rule need not first request a national-interest exception and wait for an answer that may never come.

And the class question is open: certification was denied without prejudice, as unnecessary “under the current circumstances,” and may be renewed if they change.¹⁹

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The court went out of its way to say that the case “is not about whether the challenged Proclamation is good or bad.” It is about who may set the price of an H-1B petition, and by what procedure. On the first question the Northern District said nothing; on the second it said a good deal. The order is best read for exactly what it decided, with an eye on the rulemaking that could, by the order’s own terms, bring it to an end.²⁰ §