On August 25, 2026, the Department of Homeland Security published a proposed rule that could fundamentally reshape the economics of hiring foreign talent in the United States.
DHS is proposing to establish a $103,265 fee for all H-1B cap-subject petitions, including those eligible for the advanced degree exemption.
The proposed fee would be paid at the time of filing and would be imposed in addition to all other applicable fees or payments.
The fee is more than one hundred times the current base filing fee for an H-1B petition and, if finalized as written, would be the single largest fee ever imposed on an immigration benefit request in the history of the agency.
The public comment period closes September 24, 2026, and stakeholders who wish to influence the outcome should act quickly.
What the Proposed Rule Would Do
Under the proposed regulation, employers filing an H-1B cap-subject petition would be required to pay a new $103,265 fee at the time of filing, in addition to all other applicable government filing fees.
The fee applies to petitions filed under the regular 65,000 cap and to those filed under the 20,000 advanced degree exemption.
It does not apply to cap-exempt petitions, extensions, amendments, transfers for beneficiaries already counted against the cap, or any other I-129 classification.
In practical terms,
universities, related nonprofit entities, nonprofit research organizations, and governmental research organizations would be untouched.
The proposed fee would generate revenue to recover a portion of the federal government's costs for administering the lawful immigration system, including adjudication of immigration benefits, fraud detection and national security vetting, systems modernization, records and fee collection operations, immigration court operations, consular visa processing, labor standards enforcement, and interagency coordination.
The fee would generate an estimated $8.8 billion annually to fund immigration operations across six federal agencies.
How This Stacks on Top of Existing Fees
To appreciate the magnitude of this proposal, it helps to understand the current fee landscape.
The H-1B process already involves mandatory government filing fees that typically total about $2,225 to $3,595 before any proposed $103,265 charge, including the $780 basic USCIS filing fee, the $500 anti-fraud fee, the ACWIA training fee of $750 for small employers or $1,500 for larger employers, and the Asylum Program Fee of $300 to $600.
The fee is in addition to everything else: the base I-129 fee, the ACWIA fee, the fraud prevention and detection fee, the Asylum Program Fee, the H.R.1 fees codified in the April 2026 interim final rule, premium processing if elected, and any payment required under Presidential Proclamation 10973 if that payment is ever reinstated.
DHS states expressly that an employer subject to both would pay both.
Connection to the $100,000 Proclamation Fee
This proposal does not exist in a vacuum.
The fee would be separate from the prior $100,000 H-1B fee, which applied to certain petitions filed on or after September 21, 2025.
On June 8, 2026, the U.S. District Court for the District of Massachusetts granted summary judgment in favor of the states on all claims — constitutional tax authority, APA violation, and statutory authority — and vacated the policy implementing the fee in its entirety.
The court found that the $100,000 fee proclamation was not an immigration restriction, but rather a tax, which the president lacked authority to impose.
However,
the U.S. Court of Appeals for the First Circuit denied the U.S. government's request for a stay
, and
the district court's ruling remains in effect, meaning the $100,000 H-1B fee cannot currently be enforced while the case continues through the courts.
The legal arguments against the new $103,265 fee will not necessarily be identical to those raised against the $100,000 proclamation, because DHS is using different statutory authority and proceeding through formal notice-and-comment rulemaking.
One likely issue is whether DHS's statutory fee-setting authority is broad enough to require one group of H-1B employers to fund billions of dollars in costs across the broader federal immigration system.
Impact on Employers and Workers
The consequences for employers — particularly small businesses — could be severe.
More than half of the 28,649 entities that filed cap-subject petitions in fiscal year 2025 were classified as small businesses, and DHS estimates the fee would have a significant financial impact on 11,051 of them.
An NFAP analysis found over half of H-1B approvals for initial employment in FY 2025 went to employers with 15 or fewer approved petitions, and 61% of H-1B employers had only one approved petition.
The American Immigration Lawyers Association (AILA) called the proposed fee "exorbitant" and argued that it could prevent employers from using H-1Bs for critical positions, including teachers, researchers, rural doctors, and clergy.
The data from the earlier $100,000 proclamation fee offers a sobering preview.
DHS's own analysis on the impact of the $100,000 charge for consular-processed H-1Bs found that it led to a "short-term shock decline of more than 90% in consular H-1B receipts," and court filings showed that only 70 companies had paid the fee.
For H-1B workers and prospective applicants — particularly international students on F-1 visas hoping to transition to employment — the implications are profound, as critics say such a large upfront cost could discourage employers from retaining foreign graduates educated in the United States and make the country less competitive in attracting global talent.
An Internal Contradiction?
Legal commentators have also pointed to a logical tension within DHS's own proposal.
DHS assumes 85,000 petitions will be filed and paid, while simultaneously claiming the fee's benefit is that employers "would be less likely to hire an H-1B worker" and conceding registrations and filings may fall — but these cannot both be true. If the deterrent works, the revenue does not materialize and the cost recovery fails.
Courts have set aside rules for less.
What Employers Should Do Now
The proposed rule is not yet in effect.
The proposed rule has not been approved and is not currently effective, and employers are not required to pay this fee for any current USCIS petitions or pending filings.
However, the comment window is closing rapidly. Here is what employers and affected stakeholders should do before September 24:
1. Submit public comments at regulations.gov.
Consider submitting comments, either individually or through industry associations, particularly if the proposed fee could have a material impact on recruiting, workforce planning, budget forecasting, or business operations.
2. Provide concrete data. Comments that include company-specific information about how many cap petitions you file annually — and what the fee would do to that number — carry substantially more weight in the rulemaking process.
3. Assess budgetary implications.
If finalized as proposed, the rule would substantially increase the cost of sponsoring foreign national talent through the H-1B cap process.
Employers should begin scenario-planning for FY 2028 hiring.
4. Explore alternative strategies.
Employers may revisit global talent deployment strategies, including whether certain functions can be performed remotely from outside the United States, whether alternative visa classifications are available, and whether hiring plans should otherwise be adjusted to reduce reliance on the annual H-1B cap process.
5. Stay in touch with immigration counsel.
Employers that regularly use the H-1B cap process should stay in close contact with immigration counsel as DHS's proposal evolves.
Looking Ahead
This proposed rule does not immediately change current H-1B fees. Before this could go into effect, DHS would have to accept and respond to public comments, amend the proposed rule, clear White House review, and publish a final rule with an effective date.
If DHS finalizes the rule, litigation is likely.
The proposed $103,265 H-1B cap fee represents one of the most consequential immigration-related fee proposals in recent memory.
Whether or not it survives the rulemaking process and inevitable legal challenges, it sends an unmistakable signal about the current administration's approach to employer-sponsored immigration — and underscores the urgency for affected stakeholders to make their voices heard before the September 24 deadline.
---
This article is for informational purposes only and does not constitute legal advice. Employers and individuals with specific questions about how this proposal may affect their immigration cases should consult with a qualified immigration attorney.