Court: United States Court of Appeals for the First Circuit

Filed: 2026-07-24

The first-circuit denied the defendants’ motion to stay pending appeal a district court order and final judgment that vacated actions taken by the Department of Homeland Security and the Department of State to implement a presidential proclamation requiring a $100,000 payment with all H-1B visa petitions. The court applied the four-factor test from *Nken v. Holder* for emergency stays, focusing primarily on whether the defendants made a strong showing that they are likely to succeed on the merits of their appeal. The court determined the defendants failed to meet this burden under the Administrative Procedure Act’s prohibition on agency actions taken in excess of statutory authority (5 U.S.C. § 706(2)(C)). Relying on *Skinner v. Mid-America Pipeline Co.*, the court held that Congress must clearly delegate authority for the executive to impose financial burdens characterized as fees or taxes. The court found that 8 U.S.C. §§ 1182(f) and 1185(a) lacked the requisite clear statement authorizing such a payment, noting that Congress typically specifies fee imposition and fund usage explicitly in the Immigration and Nationality Act. Additionally, the court rejected the defendants’ argument that the implementation actions were not “final agency action” subject to judicial review, citing First Circuit precedent that agency actions carrying out presidential directives are ordinarily reviewable under the APA. The practical consequence is that the district court’s judgment vacating the $100,000 H-1B payment requirement remains in effect while the appeal proceeds. The defendants must continue to operate without the enforced policy until the First Circuit issues a final decision on the merits.

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