U.S. Immigration Update: September Visa Bulletin and H-1B $100,000 Payment Litigation

The September 2026 Visa Bulletin, the final bulletin of Fiscal Year 2026, sets out the latest employment- and family-sponsored immigrant visa availability. At the same time, the legal position surrounding the $100,000 H-1B payment requirement remains subject to ongoing litigation and new executive action.

For Indian applicants, both developments can affect immigration planning, but in very different ways: the Visa Bulletin concerns visa-number availability and priority dates, while the H-1B issue concerns a contested payment and entry restriction applicable to certain H-1B cases.

September Visa Bulletin: What changed for Indian applicants?

The U.S. Department of State’s September 2026 Visa Bulletin shows continued restrictions in several employment-based categories for India.

For India EB-1, the September Final Action Date is 15 October 2022.

For India EB-2, the category is listed as “U” — Unavailable.

For India EB-5 Unreserved, the category is also listed as “U — Unavailable” in the September bulletin.

The State Department also warned that high demand and visa-number usage could require further adjustments in some employment-based categories before the end of the fiscal year.

India employment-based Final Action Dates

These dates are relevant when determining whether an immigrant visa number is available for final action on a particular case.

Why did EB-2 and EB-5 become unavailable?

The State Department reported that the available FY2026 visa numbers for India EB-2 had already been used. It announced on 22 May 2026 that all available EB-2 immigrant visas for India for FY2026 had been issued.

A similar development occurred for India EB-5 Unreserved. The Department announced in June that India’s FY2026 per-country limit for EB-5 Unreserved had been reached.

The September Visa Bulletin therefore reflects the annual visa-number constraints affecting these categories.

What happens when the new fiscal year begins?

The employment-based annual visa limits reset with the beginning of Fiscal Year 2027 on 1 October 2026.

The State Department has previously indicated that new visa numbers can become available when the fiscal year changes, but the movement of priority dates depends on demand, available numbers and actual visa usage.

This means applicants should not assume that an unavailable category will automatically become current or move by a specific number of months on 1 October.

The October Visa Bulletin must be checked for the actual dates established for the new fiscal year.

EB-1 India also remains under pressure

Although EB-1 India has a published Final Action Date rather than being unavailable in the September bulletin, the Department specifically warned about high demand in this category.

It stated that continued demand and number use by applicants chargeable to India could result in the EB-1 India category becoming unavailable if the applicable annual limit were reached before the fiscal year ended.

For applicants with older EB-1 priority dates, the September bulletin therefore remains an important document to monitor.

What does the Visa Bulletin mean for Indian Green Card applicants?

A priority date is not the same thing as a visa approval date.

Applicants generally need their priority date to be earlier than the applicable Final Action Date before an immigrant visa number can be authorised for final action in an oversubscribed category.

For applicants using Adjustment of Status, the separate Dates for Filing chart can also be relevant, subject to USCIS determining which chart may be used for that month.

Applicants should therefore check:

1. Their employment-based category
2. Country of chargeability
3. Priority date
4. Final Action Date
5. Dates for Filing, where relevant
6. Whether USCIS permits use of the relevant filing chart

H-1B $100,000 payment: why the legal position is complicated

The separate H-1B issue involves the $100,000 payment requirement introduced under a 2025 presidential proclamation.

On 8 June 2026, the U.S. District Court for the District of Massachusetts vacated the government actions implementing the payment requirement.

The government subsequently sought to pause that ruling while pursuing an appeal.

On 24 July 2026, the U.S. Court of Appeals for the First Circuit denied the government’s request for a stay. The appellate order addressed the district court’s vacatur of the actions implementing the $100,000 payment requirement.

This litigation therefore remains an important part of the legal history of the H-1B payment requirement.

September proclamation adds another layer

On 18 September 2026, the White House issued a new proclamation extending the H-1B entry restriction for another 12 months.

The proclamation provides that, subject to stated exceptions, entry of certain H-1B specialty-occupation workers is restricted unless the relevant petition is accompanied or supplemented by a $100,000 payment. It sets the effective date at 21 September 2026 and provides for an expiration date one year later unless extended.

The proclamation specifically addresses H-1B workers who are currently outside the United States and directs DHS to restrict decisions on covered petitions that are not accompanied by the payment. It also provides exceptions where DHS determines that hiring particular workers is in the national interest and does not pose a threat to U.S. security or welfare.

Because the underlying policy has been challenged in federal court, employers should not rely on a simplified statement that the fee is either permanently cancelled or universally payable.

What should H-1B employers do?

Employers considering an H-1B filing should review the current legal and agency position immediately before filing.

Particular attention should be given to:

1. Whether the case falls within the covered H-1B category
2. Whether the prospective worker is inside or outside the United States
3. Whether an exception applies
4. The latest USCIS and Department of State implementation instructions
5. Current court orders affecting the payment requirement
6. Any subsequent agency guidance

The legal position can change as litigation continues, so employers should avoid relying on older information about the $100,000 requirement.

What should Indian applicants keep in mind?

For Indian Green Card applicants, the September Visa Bulletin highlights the continuing importance of priority-date monitoring.

For H-1B employers and professionals, the $100,000 payment issue requires a separate analysis because it involves a combination of executive action, agency implementation and ongoing federal litigation.

These are therefore two different immigration issues:

Green Card applicants: Monitor the Visa Bulletin, priority dates and visa-number availability.

H-1B employers: Check the current legal status of the $100,000 payment requirement and applicable USCIS/State Department instructions before filing.

The key takeaway

The September 2026 Visa Bulletin shows EB-1 India at 15 October 2022, while EB-2 India and EB-5 Unreserved India are listed as unavailable. The State Department has also warned that high demand could require further adjustments in certain categories.

At the same time, the H-1B $100,000 payment requirement remains affected by ongoing litigation and subsequent executive action. The First Circuit’s July decision denied the government’s request to stay the Massachusetts court’s vacatur, while the September 2026 proclamation contains a new extension of the H-1B entry restriction and payment condition.

For applicants and employers, the safest approach is to assess the specific visa category, priority date, filing route and current legal position rather than relying on a general headline about either development.