$100,000 H-1B Fee Struck Down, Then Reinstated: Why Tech Workers Are Choosing EB-5

A federal court struck down the $100,000 H-1B visa fee this month, then paused its own ruling days later, putting the charge back in force while the government appeals. That whiplash is the point. Courts keep checking administrative attempts to restrict lawful immigration, and H-1B still never feels secure.

Courts Keep Blocking H-1B Restrictions, and It Still Doesn’t Feel Secure

The fee came from a September 2025 presidential proclamation that placed a $100,000 charge on certain new H-1B petitions. On June 8, 2026, a federal judge in Massachusetts vacated it, ruling the administration overstepped its authority and that the payment worked like a tax only Congress can impose. Days later the same judge stayed his order, so the fee is collectible again while the appeal proceeds, and a separate court had already upheld it in December. The split may not settle until a higher court steps in.

That is the pattern. The H-1B survives, but only after litigation, and never for long. It is still a lottery most registrants do not win, still tied to a single sponsoring employer, and still a 60-day scramble after a layoff. A favorable ruling changes none of that. If you are weighing your options, Behring’s H-1B to EB-5 guide for tech workers connects these moving parts, and its walkthroughs on converting an H-1B to EB-5 and the step-by-step conversion process are a useful starting point, along with the options for employees facing an H-1B layoff.

Why EB-5 Keeps Attracting Tech Workers

EB-5 offers a path that does not hinge on an employer or a lottery. An $800,000 investment in a Targeted Employment Area (TEA) project can support a green card petition the investor files and controls, and in many cases an H-1B holder can keep working while it is pending. That independence is the draw.

The figure Behring points to is $1.2 billion, the EB-5 development it reports completing since 2013, work it says has created more than 8,400 jobs. Because Behring develops and operates its own projects, the team raising your capital is the same one building with it. For a worker watching a six-figure fee blink in and out of force, that kind of continuity is the appeal. To weigh it against your timeline, schedule a consultation or request an EB-5 investment plan.

Important Disclosures

This article is provided for general educational purposes only and does not constitute legal, tax, investment, or immigration advice. EB-5 eligibility, project risks, and immigration outcomes depend on specific facts, evolving USCIS policy, and individual legal strategy. Investors should consult their own qualified immigration and securities counsel regarding how these concepts apply to their particular circumstances. References to USCIS, precedent decisions, or attorney commentary are descriptive only and do not imply any guarantee of outcome in any specific case.