What’s Happening
On August 25, 2026, the Department of Homeland Security (“DHS”) is scheduled to publish a proposed rule that would impose a new $103,265 fee on all cap-subject H-1B petitions. The fee would apply to petitions filed under both the regular H-1B cap and the advanced-degree exemption and would be charged in addition to all other required filing fees.
It is important to note that the proposal is not yet final and will not take effect upon publication. DHS must first accept and review public comments and publish a final rule with an implementation date.
What Is Being Proposed?
If finalized in its current form, the new fee would be payable when the employer files the H-1B petition – not when it submits the electronic cap registration.
| Petition Type | Proposed $103,265 Fee |
|---|---|
| Regular cap H-1B petition | Would apply |
| U.S. advanced-degree cap petition | Would apply |
| Change-of-status cap petition | Would apply |
| Consular-notification cap petition | Would apply |
| H-1B extension or amendment | Would not apply |
| H-1B change of employer for a previously counted worker | Would not apply |
| Petition filed by a qualifying cap-exempt employer | Would not apply |
| Other cap-exempt H-1B petition | Would not apply |
Accordingly, the proposed fee would affect not only employees applying for H-1B visas from abroad, but also F-1 students and other foreign nationals already in the United States who are selected in the annual H-1B cap process.
How DHS Calculated the Fee
The proposed fee is not based on the cost of adjudicating an H-1B petition. Instead, DHS calculated the amount by dividing approximately $8.78 billion in projected annual immigration-system costs by the 85,000 H-1B visa numbers available under the annual cap.
| Agency or Component | Proposed Annual Allocation |
|---|---|
| USCIS | $3.00 billion |
| Executive Office for Immigration Review | $2.96 billion |
| Department of Labor | $1.21 billion |
| Immigration and Customs Enforcement | $1.05 billion |
| Department of State | $484 million |
| Customs and Border Protection | $76.2 million |
| Total | Approximately $8.78 billion |
The proposed revenue would therefore be expected to fund immigration-related activities across several federal agencies, including benefit adjudications, immigration-court operations, labor-certification processing, screening, fraud prevention, enforcement, and consular functions.
Relationship to the Separate $100,000 H-1B Payment
This proposal is separate from the administration’s earlier $100,000 H-1B payment requirement, which was imposed through a presidential proclamation and later vacated by a federal court. The government has appealed that decision, but the proclamation-based payment is not currently being enforced as confirmed by USCIS.
DHS says the proposed $103,265 fee draws on different statutory authority than the vacated $100,000 payment, making the two separate obligations. The $100,000 payment is currently unenforced and expires September 20, 2026 unless extended. The two would stack only in a narrow scenario: the proclamation is extended, the $100,000 payment is reinstated, and the new fee takes effect during that window. An employer caught by both would owe more than $203,000 before standard H-1B filing fees.
What the Proposal Could Mean for Employers
If implemented, the rule would fundamentally change the economics of cap-subject H-1B sponsorship. Employers may wish to begin evaluating:
Which positions would remain viable for cap sponsorship at the proposed cost;
Whether H-1B sponsorship policies would need to be revised;
How the fee could affect campus hiring and the retention of employees working in F-1 status;
Whether additional cap registrations or later selection rounds may result if selected employers decline to file petitions; and
Whether FY 2028 immigration budgets should account for multiple possible fee and litigation outcomes.
The proposal may have an especially significant impact on small and midsize employers, early-career hiring, and foreign nationals whose continued employment depends on selection in the H-1B cap.
The Rule Is Not Yet Effective
Publication of the proposed rule does not create an immediate payment obligation. DHS will accept public comments for 30 days following publication. Comments are expected to be due on September 24, 2026, through Regulations.gov under DHS Docket No. USCIS-2026-0298.
DHS must then review the submissions, respond to significant comments, and decide whether to issue a final rule. Any final rule would specify its effective date. Given the scale and structure of the proposed fee, litigation is likely if DHS proceeds with a substantially similar final regulation.
What Employers Should Do Now
Employers should not change current H-1B filing plans based solely on the proposal. However, they should begin assessing the potential financial and workforce consequences, preserve data showing how the proposed fee would affect hiring and retention decisions, and consider whether to participate in the public-comment process.
D&S will continue to provide updates on the implementation of the fee as they become available.
This alert is for general informational purposes only and does not constitute legal advice. Please consult D&S immigration counsel regarding your specific circumstances. D&S Senior Associate, Paulina Baginska, assisted with the preparation of this alert.