Only 700 Paid the $100K H-1B Fee. Rehire the Cap-Counted Who Left

For a year, hiring an H-1B engineer who lived outside the US meant paying $100,000 on top of everything else. Almost nobody did it. The September 2026 proclamation showed that payment had been made for only about 700 people. A California court then blocked the policies, the government appealed to the Ninth Circuit on Oct 9, and as of Oct 25 the fee is not being collected. That reopens the fastest hire from abroad: an engineer who was already counted against the H-1B cap and now works in Toronto, London, or Bangalore.

Where the $100,000 H-1B fee stands in late October 2026

Two federal courts have blocked the $100,000 H-1B fee, and as of Oct 25 USCIS is not collecting it. USCIS says it will follow the orders for now but still plans to collect the payment if an order is lifted.

How it got here:

• June 2026: Judge Leo T. Sorokin (D. Mass.) vacated the fee policies in a 20-state case led by California Attorney General Rob Bonta. The First Circuit refused to stay that ruling.
• Sept 18, 2026: Proclamation 11069 extended the restriction until Sept 21, 2027. The same proclamation showed that payment had been made for only about 700 people.
• Late Sept 2026: In Global Nurse Force v. Trump, Judge Haywood S. Gilliam Jr. (N.D. Cal.) blocked the USCIS and CBP memoranda and guidance, including the guidance on how to pay the fee. He found the policies arbitrary and capricious because the government had not considered alternatives or reliance interests.
• Oct 9, 2026: More than a week after Gilliam's ruling, the government appealed to the Ninth Circuit.
• Oct 25, 2026: The fee is still not being collected.

Be precise when you brief a hiring manager. You may see claims that USCIS is "approving petitions without the payment." What has actually been confirmed is narrower: the payment is not being collected. That is enough to act on, but don't promise more than that.

about 700

Why the fee hit former H-1B engineers abroad hardest

The $100,000 payment applied to new petitions for people outside the US, and it was not limited to cap-subject petitions. So an engineer who could legally skip the lottery still cost the full fee. Being exempt from the lottery did nothing for this group until the courts stepped in.

That helps explain why the number is so small. A hiring manager weighing a $100,000 surcharge for an engineer in Toronto against a candidate already in the US had an easy call. Former H-1B engineers who had left the US were priced out regardless of their cap status.

The lottery rules for this group never changed. What changed was the price, and the court block removed it. If your team wrote off hiring an H-1B worker from abroad in 2026, this group is the first one to reopen.

Skipping the lottery never saved a former H-1B engineer abroad from the fee. The court block did.

Who counts as "previously counted" (hint: not just the last six years)

If someone was counted against the H-1B cap before and still has unused time on their six-year clock, an employer can petition for them without the lottery, however long ago they left. Most recruiters work from a narrower, outdated version of that rule.

The legal basis is INA 214(g)(7): a person counted against the cap within the past six years is not counted again. That "six years" wording is why so many people believe the window is recent departures only. A 2017 clarification changed that: "there is no time limitation on recapturing the remainder of the initial 6-year period."

Recapture means reclaiming the unused part of the six-year H-1B limit. Take an engineer who left the US in 2015 after three years on H-1B. They may still be able to come back for the remaining three without entering the lottery. So the real test is whether someone was counted before and has time left. When they were counted doesn't matter.

There are two traps that sink cases:

1. Cap-exempt employers. Someone whose only H-1B was with a university or another cap-exempt employer was never counted against the cap, so they have nothing to recapture.
2. The fresh-clock option. Anyone outside the US for more than a year can choose a new six-year period instead of recapturing. That route goes back through the lottery.

Have immigration counsel confirm each case. For sourcing purposes, though, the pool is much bigger than "people who left recently."

Where the pool lives: Toronto, London, Bangalore

Refolk's index of professional profiles returns 17,719 Senior/Staff Software Engineers in Canada, 28,496 in the UK, and 301,494 in India under the same title filter, and each pool has a different shape. None of those counts is filtered for US work history, so they size the haystack you narrow from, not the final pool.

Treat these as rough signals. The staff and hub shares come from 25-profile samples, and the totals include every senior engineer, not only former H-1B holders. You still have to narrow by US work history. What the table shows is where that narrowing pays off:

• India is the largest pool by far but the most spread out. A US-history filter has to cut through about 300,000 profiles, and only 1 of 25 sampled profiles was staff level.
• The UK is concentrated in London, and sample employers included Monzo, Checkout.com, and Samsara.
• Canada is small, staff-heavy, and clustered in one metro area. Sample employers included Wealthsimple, Clio, Grafana Labs, and Super.com.

Why Canada is the most concentrated pool

Canada is the best place to source former US H-1B engineers because it recruited H-1B holders directly. In 2023 Canada offered three-year open work permits to H-1B holders, and the program hit its 10,000-application cap in under 48 hours.

Those three-year permits are now expiring. Holders can apply for an extension until Dec 15, 2026. IRCC has said it plans an accelerated pathway for H-1B holders, but as of mid-2026 it had published no launch date and no eligibility rules. Thousands of people who held H-1B status in 2023 are facing a decision about their Canadian status right now.

That timing works for you. A recruiter reaching out in November is calling someone who already has a renewal deadline on the calendar.

How to source former H-1B engineers by US work history

Look for senior engineers abroad who held a US-based role at a private company, estimate how much time they used, and confirm their cap history on the first call. Titles and locations are easy to filter. The hard part is reading work history the way an immigration lawyer would.

A practical sequence:

1. Start with title and location. Senior or Staff Software Engineer in Toronto/GTA, London, or Bengaluru.
2. Require a US-based role with dates. The profile should show a US city on a past job, at a company, not just "remote."
3. Drop US history that is only academic. Postdocs and university research jobs usually mean cap-exempt employment that was never counted.
4. Estimate time used. Add up the US tenure. Someone with two or three years in the US probably has meaningful time left to recapture.
5. Ignore departure year. Since 2017 there is no time limit on recapture, so a 2015 departure is still a lead.
6. Ask for the approval notices early. The petition needs copies of the earlier approvals, so confirm in the first conversation that the candidate has them.

This is where Boolean search breaks down. "US role at a non-university employer, then a move to Toronto, with total US tenure under six years" is a judgment about a sequence of jobs, and keyword strings can't express it. That's the gap Refolk is built for: you describe the person in plain English, and I return a ranked shortlist with the work history that matched.

Write the first message around their history, not the visa. Something like "You were at a Bay Area company until 2022. Would a return to the US be interesting if the lottery weren't a factor?" is specific and honest, and it gets the cap question answered without making it sound like paperwork.

How to file before the window can close

The employer files the petition as cap-exempt on the H-1B data collection supplement and attaches copies of the candidate's earlier approvals. While the fee isn't being collected, the only cost of waiting is the chance that a court order gets lifted.

How urgent is it? Real, but don't oversell it. A Ninth Circuit stay would not bring the fee back by itself. Massachusetts vacated the same policies in June, the First Circuit refused a stay, and a government win in one circuit would not, on its own, revive policies that another court vacated. The bigger long-term risk is that Gilliam's ruling rests on procedure, and a procedural defect can be fixed through rulemaking. Proclamation 11069 already runs to Sept 21, 2027.

The constraint you control is search time. A cold search for a staff engineer with the right US history can take weeks before anyone gets on a call, and then the lawyers need time for approvals, the supplement, and the filing itself. If your team is starting from zero on a hard-to-fill role, the search can use up most of the window before a petition is drafted.

A checklist to run in parallel with sourcing:

• Get immigration counsel to confirm cap-counted status from the prior approval notices.
• Calculate remaining time on the six-year clock.
• Mark the petition cap-exempt on the data collection supplement.
• File while the fee is not being collected, and save proof of the filing date.

Why this pool still pays off if the fee comes back

Previously counted engineers are a good bet even if the litigation goes against employers, because the next proposed fee leaves them out. DHS has proposed a $103,265 fee on all H-1B cap-subject petitions, and it does not apply to cap-exempt petitions, extensions, amendments, or transfers for people already counted against the cap.

$103,265

Put the two fees side by side and the pattern is clear. The $100,000 fee hit cap-counted people abroad as hard as anyone. The proposed DHS fee would hit everyone except them. Whatever happens in the Ninth Circuit, a list of senior engineers in Toronto, London, and Bangalore with recapturable US time keeps its value, and the work you do building it now carries over to next year's reqs.

FAQ

Is the $100,000 H-1B fee blocked right now?

Yes. Judge Sorokin vacated the policies in June 2026, and Judge Gilliam blocked the USCIS and CBP guidance in late September. As of Oct 25 the fee is not being collected. The government appealed Gilliam's ruling to the Ninth Circuit on Oct 9, and USCIS says it still intends to collect the fee if an order is lifted.

Can I rehire a former H-1B employee without the lottery?

Usually, yes, if they were counted against the cap and still have unused time on their six-year limit. Since 2017 there has been no time limit on recapturing that remainder. The employer marks the petition cap-exempt on the data collection supplement and attaches the earlier approvals. People whose only H-1B was at a university were never counted and don't qualify.

Would a Ninth Circuit stay bring the fee back immediately?

Not by itself. The Massachusetts court vacated the same policies, and the First Circuit refused to stay that ruling, so a government win in the Ninth Circuit would not on its own revive what Massachusetts vacated. The longer-term risk is a new rulemaking that fixes the procedural defects Gilliam found.

Do the Canadian open-work-permit holders qualify?

Some will. Canada's 2023 program gave three-year open work permits to people who held H-1B status at the time, and it filled its 10,000-application cap in under 48 hours. Anyone among them who held H-1B at a private, cap-subject employer was counted against the cap and may be able to recapture remaining time. Confirm each person's approval history, and keep in mind that their Canadian permit extension deadline is Dec 15, 2026.