Every hiring rule in this country gets tested twice. Once in Washington, where it sounds decisive. Then, in a courtroom, where it tends to sound a lot less so.
For roughly a year, the fight over who gets American jobs has run mostly through immigration law. Fees, proclamations, lottery math, and wage tiers.
Employers responded the way companies always respond to a price tag. They modeled it, budgeted for it, and in several cases sued over it.
That approach has a shelf life, and it runs out this month. A federal judge vacated the $100,000 charge on certain new H-1B petitions in June, finding that the fee “functions as a tax rather than a routine regulatory charge,” according to Ogletree Deakins. An appeals court refused to revive it in July.
So the most expensive stick in the American jobs fight is about to be gone. The cheaper one is not going anywhere, and the Equal Employment Opportunity Commission (EEOC) spent Monday, Sept. 14, reminding workers that it exists.
Why the H-1B fee fight keeps landing in court
Proclamation 10973 arrived on Sept. 19, 2025. It required a $100,000 payment with new H-1B petitions for workers processed at consulates abroad. The H-1B is the main visa American companies use to hire foreign professionals, and the cost of using it jumped roughly 30 times overnight.
Twenty states sued, and a Massachusetts district court threw the policy out in June. It is the second fight this year over how far executive economic authority reaches.
The proclamation imposes “a temporary 12-month restriction that will expire on September 20, 2026, unless extended,” according to Klasko Immigration Law Partners.
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The Department of Homeland Security (DHS) has already opened a second route. It published a proposed rule on Aug. 25 that would charge $103,265 on cap-subject H-1B petitions, this time through notice-and-comment rulemaking rather than presidential order.
Rulemaking is slower, and it is also harder to knock down. The district court faulted the original policy for lacking statutory footing rather than for skipping procedural steps, which means a rewrite would need a different legal basis, according to Klasko.
Here is how the past 12 months actually unfolded:
- Sept. 19, 2025: The proclamation imposes the $100,000 fee on new petitions requiring consular processing, according to Clark Hill.
- Nov. 19, 2025: The EEOC publishes guidance telling workers that discrimination against Americans is illegal, according to the agency.
- June 8, 2026: A district judge vacates the fee as an unlawful tax, according to Littler.
- July 24, 2026: The First Circuit declines to reinstate the fee during appeal, according to Ogletree Deakins.
- Aug. 25, 2026: DHS publishes the $103,265 replacement proposal in the Federal Register, according to PSBP Law.
What the EEOC is telling American workers now
The agency’s position is that Title VII of the Civil Rights Act of 1964 protects every worker’s national origin, including an American one. Job ads that say “H-1B preferred” can be evidence of an unlawful posting, according to the EEOC.
The agency has started putting cases behind the language. In May, it sued Advanced Technology Group, an Oregon construction services firm, alleging that American workers at a New Mexico jobsite faced anti-American slurs and that one was fired after complaining, according to Bloomberg Law.
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The guidance flags two other patterns. Terminating American staff who sit between project assignments at a far higher rate than visa holders. And making the application process more laborious for U.S. workers than for H-1B holders during labor certification.
The Labor Department has been running a parallel effort called Project Firewall, which aims to “ensure American workers have a fair chance to compete and succeed,” according to the Labor Department.
None of that is new law. What is new is that the enforcement route requiring no proclamation, no fee schedule, and no appellate ruling is now the only one standing.
Where the enforcement numbers fall short
This is where my analysis parts ways with the rhetoric. The EEOC filed 94 merits lawsuits in fiscal 2025, according to its Office of General Counsel.
When I pulled the category breakdown, only two of those were national origin cases, according to a review by law firm Eckberg Lammers.
Two, out of 94, from an agency that made anti-American bias a signature priority in February 2025.
There is a mundane explanation. The commission lacked a quorum for much of that stretch, which capped what it could authorize. That constraint is gone, and the restored quorum signals heightened enforcement activity in 2026, according to Holland & Knight.
So the useful question for investors is not whether the agency means it. It is whether the caseload starts matching the press releases now that the procedural handbrake is off.
Which employers carry the most exposure
The concentration is easy to map. Amazon (AMZN) employed the most workers on H-1B visas as of March 31 at 4,831, followed by Infosys (INFY) at 3,195 and Tata Consultancy Services at 2,885, according to Forbes.
Cognizant Technology Solutions (CTSH), Apple (AAPL), Microsoft (MSFT), Alphabet’s Google (GOOGL) and Meta Platforms (META) rounded out the top eight in the same tally.
Those eight names are also hiring into a labor market that keeps flashing warning signs, which sharpens every decision about who stays on payroll and who does not.
For the IT services firms, the business model is the exposure. They place workers at third-party client sites, often at lower wage levels, and that bench-and-deploy structure is the pattern the guidance describes almost line for line.
A Title VII charge needs none of the machinery a fee needs. It needs one worker and one form, filed within 180 days of the conduct in most states and 300 days in states with their own fair employment agency.
That window is the part most people miss. A worker who was replaced 14 months ago and only now connects the dots has usually run out of runway.
What happens after the visa fee expires
Three dates are worth watching. Sept. 20, when the proclamation lapses unless the administration renews it. The close of the comment window on the $103,265 rule. And the First Circuit’s ruling on whether the executive branch can price a visa like a tax.
The date that matters most to a portfolio may be none of those. Title VII liability does not sunset, and it does not get stayed pending appeal.
For a reader holding an S&P 500 index fund, that shifts the H-1B story out of somebody’s immigration budget and into the legal-reserves line for eight of the largest employers in American technology.
For the reader who was laid off and asked to train a replacement, it means the charge form has been sitting on the EEOC’s site the whole time, and the clock on it is shorter than most people realize.
The fee was always the loud part of this fight. The statute is the durable one.
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