Clear-Statement Limits on INA § 1182(f) “Restrictions” to Impose a $100,000 H‑1B Payment; Agency Implementation of Presidential Directives Ordinarily Remains APA-Reviewable

1. Introduction

In State of California v. Mullin (1st Cir. July 24, 2026), a coalition of twenty states (led by California and Massachusetts) defended a District of Massachusetts judgment that vacated a federal “Policy” implementing a presidential proclamation requiring a $100,000 payment to accompany most H-1B petitions for workers outside the United States. The defendants—senior federal officials and agencies including DHS and DOS—sought an emergency stay pending appeal to reinstate the Policy while appellate review proceeds.

The core issues at the stay stage were: (i) whether the government made a “strong showing” of likely success on appeal—especially against the states’ APA claim that the Policy exceeded statutory authority, and (ii) whether the equities and public interest justified the “extraordinary” remedy of a stay.

2. Summary of the Opinion

The First Circuit denied the motion to stay. Applying the four-factor test from Nken v. Holder, the court held that the defendants failed to make the required strong showing of likely success on the merits—the “most critical” factor—primarily because:

  • Under Skinner v. Mid-America Pipeline Co., a clear statement from Congress is required for executive action imposing significant financial burdens akin to fees/taxes not directly benefiting regulated parties, and the government did not show such clear authorization in 8 U.S.C. §§ 1182(f) or 1185(a).
  • The government’s reliance on Federal Energy Administration v. Algonquin was undermined by Learning Res., Inc. v. Trump, which emphasized that Algonquin involved statutory text with an “explicit reference” to duties; the INA provisions here lacked comparable fee/duty language and Congress elsewhere in the INA expressly authorizes and structures fees.
  • The government did not persuasively show that the challenged implementation steps were not final agency action reviewable under the APA, particularly given Agatha v. Trump (agency implementation of a presidential directive is “ordinarily subject to APA review”).

The court assumed arguendo that the government showed irreparable harm, but found the remaining factors mixed and, critically, insufficient to overcome the weak merits showing.

3. Analysis

A. Precedents Cited

1) Stay framework and the “extraordinary relief” standard

  • Washington v. U.S. Dep't of Hous. & Urb. Dev. (quoting Nken v. Holder) supplies the baseline admonition that a stay is an “intrusion” and not a matter of right.
  • New York v. Kennedy reiterates Nken’s four factors and stresses that likelihood of success and irreparable injury are the “most critical.”
  • Evans-García v. United States is invoked to confine the court’s analysis to arguments actually advanced.
  • Am. Fed'n of Gov't Emps. Loc. 2305 v. U.S. Dep't of Veterans Affs. supports the proposition that a weak showing on the critical merits factor can defeat a stay even if other factors are contested.
  • Ind. State Police Pension Tr. v. Chrysler LLC (per curiam) underscores that even irreparable injury does not entitle a movant to a stay “as a matter of right.”

2) Clear statement for executive-imposed financial burdens: fees, taxes, and statutory authorization

  • Skinner v. Mid-America Pipeline Co. is the analytical fulcrum: where the executive claims discretionary authority to impose additional financial burdens—whether labeled “fees” or “taxes”—Congress must have spoken clearly. The First Circuit treated Skinner’s clear-statement requirement as directly applicable to a $100,000 per-petition payment.
  • The government attempted to narrow Skinner by citing FCC v. Consumers' Research, which stated Skinner did not create a “special nondelegation rule for revenue-raising legislation.” The court rejected the move as misframing the question: the issue was not whether delegation is permissible (nondelegation), but whether delegation was made (statutory authorization), for which Skinner still demands clarity.
  • Edye v. Robertson was used by the government to characterize the payment as an “immigration regulation” rather than a tax; the court did not adopt that characterization as sufficient to bypass Skinner’s clear-statement inquiry.

3) “Restriction” language, duties/fees, and statutory pattern-of-usage

  • Federal Energy Administration v. Algonquin was invoked to argue that broad discretion-conferring language can include monetary exactions. But the panel relied on Learning Res., Inc. v. Trump to emphasize that Algonquin also contained an “explicit reference” to duties—missing from §§ 1182(f) and 1185(a).
  • Learning Res., Inc. v. Trump further mattered because it analyzed whether a term synonymous with “restriction” (“regulation”) includes power to impose a tax, and answered no by looking to Congress’s pattern of usage. The First Circuit treated that methodology as relevant here and noted the government did not grapple with it.
  • The court highlighted INA provisions where Congress expressly authorizes and structures fees—e.g., 8 U.S.C. § 1184(c)(9)(A), § 1184(c)(11)(A), § 1184(c)(12)(A)—and related provisions specifying collection and allocation—e.g., 8 U.S.C. § 1356(s), § 1356(m), § 1356(v). This statutory pattern cut against inferring a massive new payment authority from general “restriction” language.

4) APA reviewability and “final agency action”

  • The government argued the Policy was not “final agency action” under 5 U.S.C. § 704 and Bennett v. Spear. The court found the argument internally inconsistent with the government’s own irreparable-harm claim that, without a stay, more noncitizens can petition and enter.
  • Agatha v. Trump was central: “agency action that carries out a presidential directive is ordinarily subject to APA review.” The defendants’ failure to engage this controlling circuit precedent substantially weakened their likelihood-of-success showing.
  • Franklin v. Massachusetts (Scalia, J., concurring) reinforced that review of presidential action is “ordinarily” obtainable via suits to enjoin officers enforcing the directive.
  • The defendants leaned on Chamber of Com. of U.S. v. U.S. Dep't of Just., but the First Circuit noted that decision avoided the very question presented, making it a poor vehicle to overcome in-circuit authority.

5) Waiver and undeveloped arguments

  • The panel applied United States v. Zannino to treat as waived the defendants’ undeveloped reliance on portions of 8 U.S.C. § 1185(a) and, later, to discount cursory assertions that plaintiffs would suffer only “minimal” harm.

B. Legal Reasoning

  1. Merits factor as decisive: Because an APA “excess of statutory authority” violation (5 U.S.C. § 706(2)(C)) would independently support vacatur, the court focused on whether the government was likely to defeat that claim on appeal.
  2. Skinner’s clear statement applied: The court characterized the $100,000 requirement as the kind of substantial financial burden for which Congress must “speak clearly” if it intends to empower the executive to impose it.
  3. General INA “restriction” language was not enough: Even if § 1182(f) is broad (“any restrictions”), the court found it unlikely—given Learning Resources’ emphasis on explicit duty references and the INA’s pattern of express fee authorizations—that such general language implicitly authorizes a six-figure payment.
  4. Final agency action argument failed: The government did not reconcile its position that the Policy does not determine rights/obligations with its claim that the vacatur causes concrete operational harm (more entries/petitions). Combined with Agatha, this left the court unpersuaded that the APA reviewability challenge had a strong chance of success.
  5. Equities did not rescue a weak merits showing: Assuming irreparable harm to the government, the court still found the defendants’ showings on harm to states and public interest underdeveloped and inconclusive, insufficient to justify a stay absent a strong merits case.

C. Impact

  • Practical constraint on monetized entry “restrictions” under § 1182(f): While this order is procedural (stay denial), its reasoning signals skepticism that § 1182(f)’s “any restrictions” clause can be used as a free-standing basis to impose very large, per-application payments without express congressional fee/duty authorization.
  • Reinforcement of “pattern-of-usage” statutory interpretation in immigration finance: By highlighting Congress’s repeated practice of expressly authorizing INA fees and directing their use, the decision strengthens arguments that courts should not infer major new revenue mechanisms from general immigration-control text.
  • APA pathway remains viable against implementation measures: By leaning on Agatha v. Trump and discounting the “no final agency action” framing, the order supports future challenges that target agency instruments (fee schedules, guidance, FAQs, adjudication restrictions) implementing presidential directives.
  • Litigation strategy consequences: The court’s use of United States v. Zannino underscores that, in emergency posture, undeveloped statutory arguments (e.g., about § 1185(a)) may be treated as waived, narrowing what can support a stay.

4. Complex Concepts Simplified

Stay pending appeal
A temporary pause of a lower-court judgment while the appeal is litigated. It is not automatic; the movant must satisfy the four Nken v. Holder factors, especially likely success.
APA “in excess of statutory authority” (5 U.S.C. § 706(2)(C))
A court must set aside agency action that goes beyond what Congress authorized in statute—even if the policy might be desirable.
Clear-statement requirement (Skinner)
When the executive claims power to impose significant financial burdens that look like fees/taxes (especially not tied to a direct benefit for the payer), courts expect Congress to have granted that power unmistakably.
Fee vs. tax (functional inquiry)
Labels are not decisive. Courts look at features: size, purpose (raising revenue vs. covering services), and whether the charge resembles a general exaction rather than a payment for a specific benefit.
Final agency action (Bennett v. Spear)
Agency action is generally reviewable when it marks the consummation of the agency’s decision-making and has real legal consequences (determining rights/obligations). Implementation steps can qualify even if they follow presidential direction.
Waiver for undeveloped arguments (United States v. Zannino)
Courts may treat an argument as forfeited when a party mentions it without meaningful development, citation, or analysis.

5. Conclusion

The First Circuit’s order denying a stay leaves in place (pending appeal) the district court’s vacatur of the $100,000 H-1B payment Policy. The court’s central message is that the government did not make the requisite strong showing of likely success because: (i) Skinner v. Mid-America Pipeline Co. demands a clear congressional statement to authorize large executive-imposed financial burdens, and (ii) neither 8 U.S.C. § 1182(f) nor § 1185(a) contains the kind of express fee/duty language that the INA uses elsewhere. Separately, the decision reinforces that agency actions implementing presidential directives are “ordinarily” APA-reviewable under Agatha v. Trump. Even as a stay ruling rather than a merits disposition, the order meaningfully shapes the litigation landscape for future executive efforts to finance or condition visa access through large “payments” absent explicit statutory authorization.