Where the $100,000 H-1B Payment Stands, and Why Founders Are Asking About O-1

Short answer. As of August 25, 2026 the $100,000 payment is not being collected, because the First Circuit declined on July 24, 2026 to stay a district court order vacating it. The proclamation expires on or about September 21, 2026 by its own terms, a merits appeal is still live, and a DHS rule that would impose a fee by rulemaking cleared White House review on August 20, 2026.

Either you are trying to hire someone and the H-1B math keeps moving, or you are the someone and you want a category that does not depend on a lottery. Both lead to the same place.

Eleven months, four reversals

The proclamation restricts entry of H-1B beneficiaries who are outside the United States unless the petition is accompanied by a $100,000 payment. It is not a filing fee on every H-1B. Petitions filed before the effective date, and approved amendments, extensions, and changes of status for people already here, fall outside it.

A client of mine has now withdrawn the same job offer twice and re-extended it twice, tracking the litigation each time. In August he asked me whether to pull it again. That is the wrong question, and I told him so. The right question is what he does if the answer changes for a fifth time while his candidate is mid-relocation.

The August 20 development is why. A proposed DHS rule on H-1B fees clearing White House review reads most naturally as an attempt to accomplish through notice-and-comment rulemaking what the district court held could not be done by proclamation. Clearing review is not a rule, and a proposed rule is not a final one. It is still a signal, and it is why this post has a watch date.

Why O-1 comes up

No annual cap. No lottery. No prevailing wage obligation. No labor condition application. For a company that needs a specific person on a specific date, those four facts are the entire argument.

Three things O-1 is not

It has no portability. H-1B has a statutory portability provision at INA § 214(n), 8 U.S.C. § 1184(n), that lets a worker begin with a new employer when a non-frivolous petition is filed, provided he was lawfully admitted, the petition is filed before the current authorized stay expires, and there has been no unauthorized employment. O-1 has no equivalent. A new employer files its own petition, and the beneficiary generally cannot begin work until it is approved. The 240-day rule for timely-filed extensions applies only to the same petitioner. This is how an O-1 professional ends up working without authorization by accident, and it happens to people who have spent a decade in H-1B practice and assume the rules travel.

Its extensions are short. Initial validity runs up to three years for the period needed to accomplish the event or activity, with ten days on either end. Extensions come in increments of up to one year to continue or complete that same event or activity, with no cap on the number. A genuinely new event or activity with the same employer can support a fresh multi-year approval instead of a one-year extension, which is worth structuring for on purpose.

It is not a preview of EB-1A. Published approval rates for O-1 have been high across recent fiscal years while the rate at which requests for evidence issue has climbed. Those are statistics about a population, not predictions about a case. And the standards for EB-1A differ. Published analysis of USCIS data shows EB-1A denial rates roughly doubling between the first quarter of fiscal 2025 and the first quarter of fiscal 2026. Plan the immigrant petition on its own evidence.

If you were counting on H-1B and are now looking at alternatives , the answer depends on your nationality, your company’s ownership, and your timeline. O-1, E-2, and L-1 each fit a different fact pattern. Call or text 512.761.8479.

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