DHS Proposes a $103,265 Fee on Every H-1B Cap-Subject Petition
On August 25, 2026, the Department of Homeland Security published a proposed rule that would add a new $103,265 fee to every H-1B cap-subject petition. The fee would be paid when the petition is filed, and it would come on top of all other H-1B fees and payments. This is a proposal, not a final rule: nothing changes for employers until DHS issues a final rule.
This is general information about a proposed rule, not legal advice. The source is the Federal Register notice Fee for Certain H-1B Petitions (document 2026-17324, 91 FR 54817; DHS Docket No. USCIS-2026-0298).
What DHS proposed
DHS, through U.S. Citizenship and Immigration Services (USCIS), proposes a new line in the USCIS fee schedule at 8 CFR 106.2. It would require an additional fee of $103,265 for:
- all H-1B cap-subject petitions, and
- petitions that qualify for the advanced-degree exemption (the extra 20,000 visas for workers with a U.S. master's degree or higher).
DHS chose to make this a separate fee, rather than raising the existing H-1B petition fee, so the money can be tracked and reported on its own. It would be charged in addition to every other fee or payment that applies to the petition.
Who would pay it
The petitioning employer. The rule describes it as a fee "that the employer must pay USCIS." DHS says it chose H-1B cap-subject petitioners because it believes they are the requestors "most willing and able to pay an additional fee." It points to a median annual pay of $133,000 for approved H-1B workers in fiscal year 2025.
The proposal has no carve-out for small businesses or nonprofits that file cap-subject petitions. DHS's own analysis says the fee would apply to "all H-1B cap-subject petitions, including small employers or nonprofits." DHS also acknowledges that some employers, including small ones, may file fewer petitions because of it.
Which petitions would not pay it
The fee would not apply to H-1B petitions that are not subject to the cap. The rule's description of cap-exempt petitions includes:
- employment at an institution of higher education or a related or affiliated nonprofit entity;
- employment at a nonprofit research organization or a government research organization; and
- in general, workers already counted against the cap who are changing employers or extending their stay within their six-year period.
Note the one exception that cuts the other way: the master's-degree cap petitions are covered by the new fee, even though they fall outside the regular 65,000 cap.
How DHS arrived at $103,265
DHS says the fee is meant to recover part of the cost of running the lawful immigration system across six agencies: USCIS, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, the Executive Office for Immigration Review (the immigration courts), the State Department and the Labor Department. It divided $8,777,488,035 in costs by an expected 85,000 cap-subject petitions a year. That gives $103,264.57, which DHS rounded to $103,265.
How it relates to the $100,000 proclamation payment
This proposed fee is separate from the $100,000 payment required by Presidential Proclamation 10973, and DHS says it rests on different legal authority. If a petitioner were subject to both, the rule says the petitioner would have to pay both amounts.
When the proposal was published, the rule noted that a federal court in Massachusetts had vacated the agency guidance implementing the $100,000 payment on June 8, 2026, and that the government's appeal was pending. Since then, Proclamation 11069 (signed September 18, 2026) has extended the $100,000 restriction until September 21, 2027.
Key dates
- Published: August 25, 2026 (proposed rule).
- Comment deadline: September 24, 2026. That deadline has passed.
- Correction: on September 10, 2026, DHS published a correction that fixes one data table (H-1B receipts for fiscal years 2021 to 2025). It does not change the fee.
- Effective date: none yet. The fee would only apply once DHS publishes a final rule, and the final amount could change. DHS says, for example, that other pending rules could change the final fee.
As of this writing, the USCIS fee schedule (Form G-1055) does not list this fee.
What this means
- For employers: a cap-subject H-1B hire could cost more than $103,000 in government fees alone if the rule is finalized as proposed. Budget for that possibility, and watch for the final rule and its effective date.
- For universities, research institutions and cap-exempt employers: the proposal would not charge the fee on cap-exempt petitions.
- For H-1B workers and candidates: the fee falls on the employer. But DHS itself expects fewer cap registrations and petitions, so some offers may change.
How we can help
If you are an employer weighing H-1B sponsorship, or a worker whose plans depend on it, we can help you understand where this proposal stands and how it may affect your case. As a firm led by former U.S. Immigration Judges, we help businesses and professionals with employment immigration. To plan ahead, contact us.
Frequently asked questions
Is the $103,265 H-1B fee in effect now?
No. It is a proposed rule published August 25, 2026. It takes effect only if DHS publishes a final rule, and the amount could change.
Which H-1B petitions would pay the new fee?
All H-1B cap-subject petitions, including those that qualify for the master's-degree (advanced-degree) exemption. Petitions that are not subject to the cap would not pay it.
Does it replace the $100,000 proclamation payment?
No. It is a separate fee. If a petitioner were subject to both, the rule says it would have to pay both.
Can I still comment on the proposal?
The comment period closed on September 24, 2026.
This article is general legal information about a proposed rule, not legal advice, and does not create an attorney–client relationship. Proposed rules can change before they become final; confirm the current requirements at uscis.gov and the Federal Register, and consult a qualified attorney about your specific situation.