The First Circuit has denied the government's motion to stay a district court order vacating DHS and State Department actions implementing a presidential proclamation that required a $100,000 payment to accompany H-1B visa petitions. A coalition of twenty states had challenged the payment requirement as exceeding the executive's statutory authority under the Administrative Procedure Act.
The Court held that the government failed to make the strong showing of likely success on the merits needed for a stay, agreeing with the states that the $100,000 payment functions like a fee or tax requiring a clear congressional delegation under Skinner v. Mid-America Pipeline Co., and that neither the statutory provisions invoked by the President nor Congress's pattern of explicitly authorizing fees elsewhere in the immigration code supplied that clear statement. The Court also rejected the government's argument that the implementing actions were not final agency action subject to review, and found the remaining stay factors did not favor the government either.
The full text of California v. Mullin can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/26-1699O-01A.pdf