The Department of Homeland Security has unveiled what may be the most consequential immigration fee proposal in U.S. history — and employers have just days left to make their voices heard before the public comment period closes on September 24, 2026.
DHS proposes to establish a $103,265 fee, payable at the time of filing, for all H-1B cap-subject petitions, including those eligible for the advanced degree exemption, which would be imposed in addition to all other applicable fees or payments.
If finalized as written, it would be the single largest fee ever imposed on an immigration benefit request in the history of the agency.
What the Proposed Rule Would Do
This is not an adjustment to the existing H-1B filing fee. It is a new, standalone charge that would be codified at 8 CFR 106.2(a)(3)(xii), and it is more than one hundred times the current base filing fee for an H-1B petition.
DHS would charge $103,265 per H-1B cap-subject petition. The fee applies to petitions filed under the regular 65,000 cap and to those filed under the 20,000 advanced degree exemption.
The proposed fee would apply whether the beneficiary is outside the U.S. or already in the country, as long as the petition is cap-subject.
An employer would not pay $103,265 simply to register a worker for the annual H-1B selection process. The fee would become relevant only after the worker is selected and the employer decides to file the actual H-1B petition with U.S. Citizenship and Immigration Services (USCIS).
The proposed $103,265 fee would be charged in addition to all current H-1B filing fees, including the Form I-129 filing fee, Asylum Program Fee, ACWIA fee, Fraud Prevention and Detection Fee, and Premium Processing Fee, if requested.
Who Is Exempt
The fee does not apply to cap-exempt petitions, extensions, amendments, transfers for beneficiaries already counted against the cap, or any other I-129 classification.
Universities, related nonprofit entities, nonprofit research organizations, and governmental research organizations would be untouched.
The fee would apply to all cap-subject employers, regardless of size.
This means that small businesses and startups would face the same six-figure charge as Fortune 500 companies.
Small and mid-sized companies that sponsor even a handful of H-1B workers a year could feel this fast. A firm sponsoring five workers, for example, would be looking at over $500,000 in this fee alone, before wages, legal costs, or anything else.
A Novel Revenue Model
Perhaps the most legally significant aspect of the proposal is its justification.
DHS does not justify the fee based on the cost of adjudicating an individual H-1B petition. Instead, the agency proposes using H-1B cap filings as a funding mechanism to support a broad range of immigration-related government functions across multiple federal agencies. This represents a significant departure from the traditional fee-for-service model generally associated with immigration benefit requests.
The proposal would adopt a novel interagency cost-recovery approach, using the fee to recover approximately $8.78 billion in identified costs across six federal agencies, including USCIS, the U.S. Department of Labor, U.S. Immigration and Customs Enforcement, the U.S. Department of State, and others.
A footnote in the notice shows the math behind the $103,265 figure: total costs to be recovered of roughly $8,777,488,350, divided by the projected 85,000 cap-subject petitions issued annually.
Roughly two-thirds of the revenue would fund agencies other than USCIS, including the immigration courts, ICE, the Department of Labor, the Department of State, and CBP.
Connection to the $100,000 Proclamation Fee
This proposal does not exist in a vacuum.
The new $103,265 fee is a separate proposal pursued through DHS rulemaking, distinct from the $100,000 fee imposed by presidential proclamation in 2025, which a federal court in Massachusetts vacated.
On June 8, 2026, the U.S. District Court for the District of Massachusetts issued a significant decision vacating the Presidential Proclamation that imposed a $100,000 fee on employers filing petitions for new H-1B visas. The ruling, issued by Judge Leo T. Sorokin, grants summary judgment in favor of the plaintiffs and invalidates the policy on legal grounds.
The court concluded that the fee functioned as a tax rather than a regulatory filing fee, the executive branch lacked authority to impose such a tax without congressional approval, and the implementing agencies exceeded their authority and violated the Administrative Procedure Act (APA).
The administration's appeal to the U.S. Court of Appeals for the First Circuit remains pending.
Crucially, DHS also left open the possibility that an employer could owe both payments at once. If the government wins its First Circuit appeal and the proclamation is extended, employers would face two separate bills—the $100,000 proclamation payment and the $103,265 regulatory fee—for a combined cost of over $200,000 per petition.
The Trump administration's latest proposal to impose a $103,265 fee on new H-1B filings represents a revised regulatory route for an idea courts previously rejected.
By pursuing the fee through formal notice-and-comment rulemaking rather than executive proclamation, the administration appears to be attempting to build a stronger legal foundation.
Legal Challenges Expected
Significant legal challenges to the rule are anticipated.
Immigration attorneys, including Caroline Tang of Ogletree Deakins, have suggested the fee amount itself could be challenged as arbitrary and capricious under administrative law, rather than on the separation-of-powers grounds that succeeded against the earlier proclamation-based fee.
DHS has acknowledged that the fee could substantially decrease demand for H-1B filings and may have a significant economic impact on employers that rely on highly skilled foreign national talent.
Tech companies are already consulting on whether to file lawsuits.
Timeline and Next Steps
The proposed rule is not yet in effect. DHS published it on August 25, 2026, with a thirty-day window for public comments closing on September 24, 2026.
DHS must review the comments and issue a final rule before the fee can take effect.
Based on the rulemaking timeline, employers should plan on the FY 2029 cap season, with registration and filings in spring 2028, as the first cap cycle realistically exposed to this fee.
What Employers and Workers Should Do Now
For employers currently sponsoring or planning to sponsor H-1B workers, several immediate steps are advisable:
- Submit public comments before September 24, 2026.
- Assess budgetary impact.
- Document hiring decisions. If any sponsorship decisions are affected by the anticipated fee, document those impacts — that evidence may prove valuable both for public comments and for establishing legal standing in future litigation.
- Explore alternative strategies. Employers should consult with immigration counsel about alternative visa categories and workforce planning approaches that could mitigate the financial burden if the rule is finalized.
Employers should not add the proposed fee to current filings unless and until a final rule establishes an effective date and applicable transition provisions.
---
The public comment period closes September 24, 2026. This article is for informational purposes only and does not constitute legal advice. For guidance tailored to your specific circumstances, consult a qualified immigration attorney.