The Department of Homeland Security (DHS) is proposing a new $103,265 fee for every H-1B cap-subject petition. If approved, employers would pay this amount at the time of filing, on top of all existing H-1B fees.
The proposed rule, titled "Fee for Certain H-1B Petitions," was released for public inspection on August 24, 2026, with publication in the Federal Register scheduled for August 25. Once published, the public will have 30 days to submit comments.
Rather than increasing the standard H-1B petition fee, DHS chose to create a completely separate charge. This allows the agency to track and allocate the new revenue independently.
The fee would apply to all H-1B cap-subject petitions, including petitions filed under the advanced degree exemption at INA section 214(g)(5)(C), the 20,000-number master's cap.
It would not apply to cap-exempt petitions. DHS states plainly that it is not proposing to require the fee for a cap-exempt H-1B nonimmigrant, because many cap-exempt beneficiaries work for nonprofit research organizations, governmental research organizations, and educational institutions.
It also would not apply to other Form I-129 classifications. DHS says it considered recovering these costs across all benefit requests, or across all I-129 petitions, and chose not to.
Essentially, the O-1A and O-1B nonimmigrant visa categories, the L-1 intracompany transferee categories, the EB-1A immigrant petition for a foreign national of extraordinary ability, and the EB-2 National Interest Waiver are all outside the proposed fee as written.
The proposed $103,265 fee isn't based on what it actually costs USCIS to process an H-1B petition. Instead, DHS took $8.78 billion in total agency costs, divided that by an expected 85,000 cap-subject petitions per year, and rounded up to the nearest $5.
That money would be split across six different government agencies:
DHS relies on Section 286(m) of the Immigration and Nationality Act for authority. However, it acknowledges that, outside of the 2024 asylum program fee, it has never used one group's application fees to cover expenses for other federal departments.
DHS explained that their reasons for targeting H-1B sponsors is because cap-subject employers have the ability to pay, noting that approved H-1B workers had a median annual salary of $133,000 in FY 2025.
At the same time, DHS admits the fee will likely reduce petition filings, especially from small businesses, and that expected revenue depends on filing numbers remaining stable.
DHS makes it clear that this new proposal is completely separate from the $100,000 fee required under Presidential Proclamation 10973.
That earlier $100,000 fee relies on different legal rules. A federal court in Massachusetts struck down the rules implementing it back on June 8, 2026. While the government appealed that decision three days later, the First Circuit Court of Appeals refused to put the fee back in place while the case plays out. As it stands, that proclamation payment is set to expire on September 21, 2026, unless extended.
By contrast, this new $103,265 fee comes from a different legal authority. DHS notes that if an employer happens to be subject to both rules, they would have to pay both fees.
Here are a few key takeaways from our analysis of the proposal:
1. It is still just a proposal. With a 30-day public comment period, there is currently no final rule or effective date. The initial release does not explain how the fee would affect petitions submitted before a final rule takes effect, or how it aligns with registration timelines. If you're planning for the FY 2028 cap season, the exact timing remains unclear.
2. Legal challenges are very likely. DHS is pushing its Section 286(m) fee authority further than ever before. Aside from the asylum program fee, there is little precedent for this approach.
3. Alternative visa routes become much more attractive. Since the proposed fee targets cap-subject petitions specifically, cap-exempt options will carry vastly different costs. If an employer opts not to cover this fee or if an applicant is not selected in the lottery, options like the O-1A, EB-1A, or EB-2 NIW may now be much more practical.
We don't recommend altering your strategy based on a proposed rule alone. However, employers and applicants should consult immigration counsel to discuss options and decide whether to submit a comment before the public deadline.
