By Ashkan Rajaee, Founder, TDZ Pro (tdzpro.com)
On October 9, the administration filed an appeal with the Ninth Circuit. It wants to revive the $100,000 H-1B fee after a federal judge in California blocked it on September 30.
That was the fee's second loss in court. In June, a federal judge in Massachusetts vacated the policy in a suit brought by 20 states. In July, the First Circuit refused to bring it back. Meanwhile, a separate appeal of a December 2025 ruling that upheld the fee is still waiting at the D.C. Circuit. And a proposed DHS rule with its own $103,265 fee is sitting off to the side, not in effect.
As of October 12, employers should not be paying the $100,000 charge, according to VisaVerge's summary of the rulings (source). Two court orders still bar collection while three appeals courts weigh in.
Read that paragraph again and tell me how you'd build a hiring plan around it.
You can't. That's my whole point.
I'm not a lawyer, and this isn't a column about whether the fee is good policy. It's a column about planning. I've spent my career on the business side of software services, and I've learned one thing the hard way: you can't scale on a variable you don't control.
The fee is a coin flip with a calendar
Picture a CFO in October. She has a roadmap that needs eight senior engineers next year. Some of them would come through H-1B.
So what goes in the budget? Zero dollars per petition, because the fee is blocked today? $100,000 each, because an appeals court could grant a stay next month? Something else, because a different proposed rule is still out there?
Every answer is a guess. And the guess sets the timeline, which sets the product launch, which sets the revenue forecast. One ruling from a court you don't control, and the whole chain moves.
That's not a talent strategy. It's a bet.
What I learned growing fast
As a partner, I helped grow a software consulting company from about $6 million to $60 million in revenue in under three years. People assume the hard part of that kind of growth is sales. It isn't. Sales was hard, sure. But the thing that kept me up at night was capacity.
When a client signs, they want the team on Monday. Not after a petition clears. Not after a lottery. Not after an appeal. Monday.
At that pace you learn fast that every dependency is a risk. A hire that hinges on a government timeline is a hire you can't promise. And a promise you can't keep is the fastest way to lose a client you fought six months to win.
So we stopped planning around things we couldn't control. We planned around talent we could actually reach.
Then I built one that was remote from day one
When I founded my own consultancy, I made it fully remote from the start. Not hybrid. Not "remote friendly." Remote.
It wasn't because of a philosophy about pajamas and laptops. It was a business decision. A distributed team takes a whole category of risk off the table.
Here's what a remote workforce sidesteps:
Visa fees. There's no petition to file for an engineer who works from anywhere outside the United States. No $100,000 question.
Court rulings. I don't need to track the First, Ninth and D.C. Circuits to know whether my team can start on time.
Policy swings. Whatever happens in the next round of appeals, my engineers are still online tomorrow morning.
That's the part people miss. Remote isn't only about cost. It's about certainty. And certainty is worth more than almost anything when you're trying to grow.
Nearshore software development is the practical version
"Go remote" can sound vague, so let me be specific.
For U.S. companies, nearshore software development is the sweet spot. Teams in Latin America work in or near U.S. time zones. Your standup is at 9 a.m. and so is theirs. Code review happens the same day. Nobody is waiting overnight for an answer.
You get senior engineers who collaborate in real time, and you hire them on a schedule you set. Not one a court sets.
Offshore works too, especially for well-defined work. But if your team needs to move fast and talk constantly, time zone overlap matters more than people admit.
"But we want people here"
I get it. Some leaders believe in the office. Some roles really do need someone on site. And many of the best engineers I've worked with came to the U.S. on visas and made their companies better. This isn't an argument against them, or against immigration.
It's an argument against making immigration policy the foundation of your growth plan.
Hire locally when it makes sense. Sponsor great people when you can. But don't let your next twelve months of delivery depend on how three appeals courts rule. Build the core of your capacity on a model that works no matter what the headlines say.
What I'd do this quarter
If I were running engineering at a growing company right now, here's my list:
- Assume the fee question stays unresolved for a while. Plan as if you won't know.
- Identify which roles truly need to be in the U.S. Be honest. It's usually fewer than you think.
- Build or partner for a nearshore team for everything else, and start now, before you're desperate.
- Invest in remote operating discipline: written specs, clear ownership, async updates, overlap hours. Remote fails when it's improvised. It works when it's designed.
- Treat any visa hire as upside, not as the plan.
The bottom line
The $100,000 H-1B fee might come back. It might not. It might change shape again. Nobody knows, and that's exactly the problem.
The companies that win the next few years won't be the ones that guessed right about a court ruling. They'll be the ones that built teams that didn't need the guess.
Stop betting your headcount on a courtroom. Build a team that ships either way.
Ashkan Rajaee is the Founder of TDZ Pro (tdzpro.com), a software consultancy.
The views expressed in this article are the author's personal opinions. They are not legal or immigration advice and are not statements of law. Readers should consult qualified legal counsel about their specific situation.
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