DHS Proposes $103,265 Fee for H-1B Cap Petitions

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.

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DHS Advances Proposal to Eliminate 60-Day Grace Period for Certain Nonimmigrant Workers

On August 6, 2026, DHS submitted a proposed rule titled “Eliminating the Discretionary 60-day Grace Period” to the White House Office of Information and Regulatory Affairs (“OIRA”) for regulatory review. The proposal could have significant consequences for foreign national employees who are laid off, resign, or otherwise end employment before their authorized period of stay expires, as well as for employers seeking to hire foreign nationals following the end of employment with another company.

Importantly, nothing has changed yet. The existing 60-day grace period remains available under current regulations.

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Update: First Circuit Denies Request to Stay Order Vacating $100,000 H-1B Fee

On July 24, 2026, the U.S. Court of Appeals for the First Circuit denied the federal government’s request to stay a district court order vacating the policy that implemented the $100,000 H-1B payment requirement.

The $100,000 payment requirement should no longer apply while the appeal is pending.

Because the First Circuit declined to keep the district court’s order on hold, USCIS should no longer assess the additional $100,000 payment under the vacated policy unless a later court order changes the current status.

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Domestic Visa Renewal Pilot Program Opening for Certain H-1B Visa Renewal Applicants

Beginning January 29, 2024, the State Department (DOS) will open a long-awaited domestic visa renewal pilot program for eligible H-1B visa renewal applicants. The program allows certain applicants who received an H-1B visa from a U.S. embassy or consulate in Canada or India within specified dates to renew an H-1B visa from within the United States, sparing them the trip to a U.S. consulate abroad.

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USCIS Announces that the H-1B Cap for FY2024 Has Been Reached

USCIS has confirmed that they have received a sufficient number of petitions needed to reach the congressionally mandated H-1B Cap (including the U.S. advanced degree exemption or “Master’s” cap) for Fiscal Year 2024.

USCIS will continue to accept and process H-1B cap-exempt petitions, including:

  • Petitions filed for current H-1B workers who have previously been counted against the cap and who retain their cap number;

  • Petitions to extend H-1B status;

  • Petitions to change the terms of employment for current H-1B workers;

  • Petitions to allow current H-1B workers to change employers;

  • Petitions to allow current H-1B workers to work concurrently in additional H-1B positions.

USCIS will send non-selection notices to cap-subject registrants through their online accounts over the next few days.

Please note that the above is for informational purposes and does not constitute legal advice. For specific questions about how the FY2024 H-1B Cap may apply to your circumstances, please contact your team at D&S.


Update: DHS Proposes Rule Replacing Random H-1B Cap Lottery to a Wage-Based Selection System

1/7/2021 UPDATE: On January 8, 2021 the administration will publish the final version of this rule in the Federal Register and it will take effect 60 days from publication. It is possible that the legality of the rule could be challenged in Federal Court and an injunction could be put in place preventing the rule from taking force while its legality is litigated. Similarly, the rule could also be placed on hold by the incoming Biden administration, delaying or preventing its implementation.

D&S will continue to monitor both the Biden Administration’s actions with respect to this rule as well as any lawsuits filed challenging the rule and will provide updates as they become available.

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DHS Proposes Rule Replacing Random H-1B Cap Lottery to a Wage-Based Selection System

RESTRUCTURING THE H-1B LOTTERY TO A WAGE-BASIS

On October 28, 2020 the Trump Administration proposed a significant change to the process of filing cap subject petitions for H-1B nonimmigrant classification. The proposal would replace the current random selection process by which USCIS selects H-1B registrations for filing of H-1B cap-subject petitions with a system that selects registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment. The proposed rule, the full text of which is available here, was published in the Federal Register on November 2, 2020 and comments on the rule must be submitted on or before December 2, 2020.

Please note that this rule will NOT take effect until a Final Rule is published and made effective.

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Analysis of New DHS and DOL H-1B and PERM Regulations

WHAT’S HAPPENING

On October 6th, 2020, The Department of Homeland Security (DHS) and Department of Labor (DOL) announced that they will publish new regulations that would significantly impact the rules governing the H-1B visa, as well as wage requirements in connection with the H-1B, H-1B1 and E-3 visas and the PERM labor certification process.

Both rules are expected to be published as Interim Final Rules (IFRs) in the Federal Register on Thursday, October 8th. The DHS Rule will take effect 60 days after publication and while stakeholders can comment on the rule during this 60 day period, comments will not be considered before the rule takes effect. The DOL Rule will take effect immediately upon publication and will not have a delayed effective date, though DOL will accept public comments for 30 days. Both rules are likely to be challenged in court, meaning that injunctions could halt their implementation, at least temporarily, pending litigation.

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USCIS Completes the H-1B Cap Random Selection Process for FY2020

USCIS has confirmed that they have received a sufficient number of petitions projected as needed to reach the congressionally-mandated H-1B Cap (including the U.S. advanced degree exemption or “Master’s” cap) for Fiscal Year 2020. USCIS previously announced on April 5 that it had received enough petitions to reach the congressionally mandated H-1B regular cap of 65,000.

USCIS received 201,011 H-1B petitions during the filing period, which began on April 1, 2019.

USCIS will begin to reject and return filing fees for all unselected cap-subject petitions (with the exception of fees for cases rejected as prohibited multiple filings).

USCIS Reaches FY 2020 H-1B Regular Cap

USCIS has confirmed that they have received a sufficient number of petitions projected as needed to reach the congressionally-mandated 65,000 H-1B visa “regular” or “Bachelor’s” cap for Fiscal Year 2020.

USCIS will next determine if they have also received a sufficient number of petitions to meet the 20,000 H-1B visa U.S. advanced degree exemption, the “Master’s” cap.

As a reminder, the agency recently implemented a new rule amending the regulations governing the H-1B cap. Under the new rule, USCIS runs petitions through the lottery process by first selecting all individuals through the regular cap of 65,000 visas and then selecting the projected number of petitions needed to reach the advanced degree exemption through the second lottery among only U.S. advanced degree holders who were not selected in the regular cap lottery. The agency has stated that this new order in which the lottery is run will likely increase the probability of selection for H-1B advanced degree beneficiaries.

Once both caps have been met, USCIS will reject and return filing fees for all unselected cap-subject petitions (with the exception of fees for cases rejected as prohibited multiple filings).

USCIS to Resume Premium Processing for all H-1B Petitions Effective March 12, 2019

Today USCIS announced that effective Tuesday, March 12, 2019, Premium Processing Service will resume for all H-1B petitions. Premium processing service was previously suspended by USCIS back in March of 2018 for all FY2019 cap cases and in August 2018, it expanded and extended the suspension or more types of H-1B petitions. Since then, the Service has been incrementally restoring premium processing Service with the full restoration beginning March 12, 2019.

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USCIS To Resume Premium Processing Service for H-1B Petitions Filed on or before 12/21/2018

The United States Citizenship and Immigration Service (USCIS) announced that it will resume premium processing service on Tuesday, February 19, 2019 for all H-1B petitions filed on or before December 21, 2018.

As a reminder, USCIS previously announced that premium processing would resume for FY2019 cap-subject petitions beginning on January 28, 2019. Today’s announcement further expands the use of premium processing service to all other H-1B petition types filed on or before December 21, 2018.

USCIS notes that the premium processing requests must be sent to the service center currently handling the pending H-1B petition. It also states that the petitioners who have received requests for evidence (RFEs) should include the RFE response with their premium processing upgrade requests.

The announcement confirms that the previously-implemented suspension of premium processing service will remain in effect for H-1B petitions that were filed on or after December 22, 2018 until agency workloads permit premium processing service to resume for these cases.

D&S will continue to monitor the H-1B premium processing suspension and provide updates as they become available.

USCIS Announces that Data Entry for all FY2019 H-1B Cap Cases is Complete

USCIS has confirmed that data entry for all fiscal year 2019 H-1B cap-subject petitions selected in the computer-generated random selection process ("the lottery") has been completed. The Agency will now begin returning all H-1B cap-subject petitions that were not selected in the lottery. 

USCIS has indicated that, due to the high volume of H-1B filings, the Agency cannot provide a definite time frame for returning unselected petitions but that they will issue an announcement once all the unselected petitions have been returned. 

USCIS Issues Memo Updating Policy on Multiple H-1B Cap Filings for Same Individual

USCIS recently issued a Policy Memorandum adopting Matter of S- Inc., a decision issued by the Administrative Appeals Office (AAO) regarding the prohibition on “related entities” filing multiple cap-subject H-1B petitions for the same H-1B beneficiary in an effort to increase chances of acceptance into the H-1B lottery.  USCIS’s adoption of this decision establishes policy guidance that applies to and guides USCIS visa adjudications, and the Memo directs USCIS personnel are to follow the reasoning in this decision in similar cases.

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USCIS Announces Temporary Suspension of Premium Processing Service for FY2019 H-1B Cap Subject Petitions

Today, March 20, 2018, USCIS announced that it will be suspending premium processing service for H-1B cap-subject petitions for fiscal year 2019.  The temporary suspension is expected to last until September 10, 2018 and applies only to FY2019 cap-subject petitions, meaning those that are being filed as cap-exempt, including requests for change of H-1B employer, extension of H-1B status, and H-1B petition amendments, for example, will continue to be eligible for premium processing service. 

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Travel Advisory for F-1 Students Undergoing H-1B Sponsorship

Foreign nationals who are currently employed pursuant to F-1 Optional Practical Training (OPT) and for whom and H-1B petition is being submitted under this year’s H-1B cap are advised to proceed with caution when planning international travel leading up to and during the H-1B cap filing window (which starts April 2, 2018).  Depending upon when their OPT expires, when and how they plan to commence H-1B status, and whether they will require a new F-1 visa stamp before October 1st, travel may not be possible or may come at increased risk.  

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D&S Practice Pointer: Bona Fide Termination of H-1B Employees

Many employers are aware of the fact that they are responsible for the reasonable cost of a H-1B employee's return transportation home if they terminate an employee prior to the expiration of their H-1B petition.  What many employers don't realize is that this requirement is also an important step in effecting a "bona fide" termination of an H-1B employee.  In this post, D&S provides some additional information, details, and guidance on ensuring that H-1B employers effect a bona fide termination of an H-1B employee to reduce the risk that they could be subject to payment of back wages and penalties from the Department of Labor (DOL).

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President Trump Signs Executive Order Titled “Buy American and Hire American”

Today, April 18, 2017, President Trump signed an Executive Order (EO) titled “Buy American and Hire American” with the intent of making changes to the U.S. visa program to protect the jobs of American workers (which includes U.S. citizens and lawful permanent residents).

In addition to provisions calling for the enforcement of laws which require, or provide a preference for, the purchase of goods produced in the United States, the EO directs various federal agencies to propose new rules and issue new guidance relating to the administration of the U.S. immigration system in order to protect the interests of U.S. workers. The EO indicated that these “Hire American” provisions are intended to create higher wages and employment rates for U.S. workers and to protect their economic interests.  Of particular note, the EO focuses specifically on reforms to the H-1B visa program, though it remains to be seen whether such reforms, once implemented, would impact other visa categories as well.

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USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse

Today, Monday April 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced multiple measures to “deter and detect H-1B visa fraud and abuse,” including targeted site visits and a new avenue for H-1B visa holders and U.S. workers to report potential violations of the H-1B visa program.

Effective immediately, USCIS will also take a more targeted approach when making site visits to H-1B petitioners and the worksites of H-1B employees. USCIS has indicated that the targeted site visits will focus on:

  • Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
  • H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers); and
  • H-1B workers who work offsite at another company or organization’s location.

USCIS will continue to conduct random, unannounced administrative site visits nationwide. However, USCIS has indicated that the addition of these targeted site visits will allow the Agency to focus resources where they believe fraud and abuse of the H-1B program may be more likely to occur.

The Agency further clarified that the site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action, but rather to identify employers who are abusing the H-1B visa program.

USCIS has also established an email address which will allow individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse.