The Department of Homeland Security published a proposed rule on August 25, 2026, that would add a $103,265 fee to every cap-subject H-1B petition, on top of all existing filing fees. If finalized, the fee would apply starting with fiscal year 2028 cap-subject petitions, meaning H-1B registrations and filings submitted in calendar year 2027.
This is a separate proposal from the $100,000 H-1B fee announced in September 2025, which a federal court in Massachusetts struck down in June 2026 as an unlawful tax. That earlier fee’s presidential proclamation is set to expire September 21, 2026, and the government’s appeal of the court ruling is still pending. This new $103,265 fee runs through a different legal mechanism, a formal DHS rulemaking rather than a presidential proclamation, which is likely a direct response to the court’s objection to how the first fee was imposed.
Who this would affect
The fee applies to cap-subject H-1B petitions only, meaning:
- New H-1B petitions filed under the regular 65,000 annual cap
- Petitions filed under the 20,000 advanced-degree exemption
- Petitions for beneficiaries already in the United States, if the petition is cap-subject
It would not apply to:
- Cap-exempt petitions filed by universities, nonprofit research organizations, or government research organizations
- H-1B extensions or amendments for workers already in H-1B status
- Petitions changing an existing H-1B worker to a new employer (H-1B transfers)
Every cap-subject employer would owe the fee regardless of company size, which is a notable change from typical USCIS fee structures that scale down for small employers and nonprofits.
Why $103,265
DHS says the figure comes from dividing roughly $8.78 billion in identified administrative costs, spread across USCIS, the Department of Labor, Immigration and Customs Enforcement, the Department of State, and other agencies, by an estimated 85,000 cap-subject petitions per year. It’s a notably different justification than the earlier $100,000 fee, which was framed as a deterrent tied to national security and wage-protection goals rather than a cost-recovery calculation.
Timeline and comment period
- August 25, 2026: Proposed rule published in the Federal Register
- September 24, 2026: Public comment period closes (30 days)
- After September 24: DHS reviews comments and decides whether to finalize, revise, or withdraw the rule
- If finalized: The fee could take effect for cap-subject petitions as early as April 1, 2027, pending litigation
Given that a nearly identical fee concept was just vacated in court two months ago, immigration attorneys are already anticipating legal challenges if this rule is finalized. Nothing changes for employers or workers immediately: the fee is not in effect and does not apply to any petition filed today.
What employers should do now
There is no action required while this remains a proposed rule. Employers planning FY2028 H-1B cap strategy, including anyone who registered in this year’s H-1B lottery or is weighing next year’s registration, should factor a potential six-figure per-petition cost into 2027 budget planning, while watching for the final rule and any court injunctions before assuming the fee will actually apply.
Employers and the public can submit comments on the proposed rule directly through the Federal Register docket (Docket No. USCIS-2026-0298) until September 24, 2026.
Source: Federal Register, Fee for Certain H-1B Petitions, published August 25, 2026.
