The Department of Homeland Security has published a proposed rule that would impose an additional $103,265 fee, payable at the time of filing, on all H-1B cap-subject petitions. The proposal, published August 25, 2026 in the Federal Register as document 2026-17324, applies broadly to cap-subject filings and explicitly includes petitions eligible for the U.S. advanced degree exemption, often called the master's cap.
The public comment period for the proposal, filed under docket USCIS-2026-0298 and RIN 1615-AD20, closed on September 24, 2026. Closure of the comment period does not mean the rule has been adopted. As of this review, DHS has not published a final rule, and no operative effective date has been confirmed. Employers and foreign national employees should treat the figure as a planning consideration tied to a pending proposal, not a fee currently owed.
What the Proposed Rule Actually Covers
The NPRM targets H-1B cap-subject petitions specifically. This is a narrower category than the entire H-1B program. Cap-subject petitions are those counted against the annual numerical limits on new H-1B visas, including the regular cap and the separate allocation for individuals with U.S. master's or higher degrees. The proposal does not convert every H-1B renewal, extension, or employer transfer into a cap-subject filing; those categories remain governed by existing cap-exempt rules unless the underlying petition independently requires cap counting.
DHS frames the fee as part of a broader interagency cost-recovery structure authorized under INA section 286(m), which allows the agency to charge fees reflecting the full costs of administering immigration benefits. The rulemaking states that costs attributable to USCIS, ICE, CBP, DOJ, DOS, and DOL were factored into the calculation. DHS estimates roughly 85,000 receipts annually under the fee, projecting about $8.8 billion per year in revenue — an agency estimate, not a guaranteed or historically proven collection figure.
Why the Advanced Degree Exemption Does Not Provide an Exit
A common misconception is that the U.S. advanced degree exemption — the separate 20,000-slot allocation for individuals holding qualifying U.S. master's or higher degrees — would shield petitioners from this new charge. The proposed text expressly states the fee applies to cap-subject petitions 'including those eligible for the advanced degree exemption.' In other words, holding an advanced U.S. degree does not exempt a petitioner from this specific fee; it only affects which numerical cap bucket the petition is counted against.
Similarly, petitioners changing status from within the United States, such as F-1 students moving to H-1B status, are not automatically exempt from cap-subject classification or from this fee. Exemption depends on the individual classification facts of each petition, not on visa category alone or physical presence inside the United States at filing.
Distinguishing This Proposal From the Proclamation Fee
This DHS rulemaking fee is legally and procedurally distinct from a separate $100,000 entry-related payment tied to presidential proclamation action that has drawn litigation elsewhere. The two mechanisms rest on different legal authorities, follow different rulemaking or executive processes, and apply to different triggering events. Employers should avoid conflating the two when budgeting or advising employees, as confusing the proposed USCIS filing fee with the proclamation-based entry payment could lead to inaccurate compliance planning.
Status of the Comment Period and What Happens Next
The Federal Register notice specified that written comments needed to be submitted on or before September 24, 2026. That deadline has passed as of this review. However, the closing of a comment window is a procedural step, not a legal outcome. DHS must still review submitted comments, potentially revise the proposal, and publish a final rule before the fee becomes legally operative. No confirmed final rule or effective date exists in the current record.
The proposal itself acknowledges that the final dollar amount could shift if related fee or biometrics rulemakings proceed on a parallel track. This means $103,265 should be understood as the proposed figure as of publication, not a locked-in final number guaranteed to survive the rulemaking process unchanged.
Clinch Law Legal Analysis
A correction does not make the proposal final
The Federal Register published a correction on September 10, 2026 concerning receipts in Table 13 of the proposal. That correction does not replace the proposed fee or the September 24 comment deadline. A search of the Federal Register record under RIN 1615-AD20 through October 5 identified the August proposal and this correction, rather than a final rule. Employers should distinguish corrections to an economic table from adoption of the proposed charge.
Practical Takeaways for Employers and Petitioners
For now, the amount legally due on any H-1B cap-subject filing is governed by existing fee regulations already in effect, not by this proposal. Employers planning for the FY2027 or later H-1B cap seasons should monitor the Federal Register and USCIS guidance for a final rule rather than budgeting the $103,265 figure as a confirmed cost today. Legal counsel can help assess which specific petitions would fall into cap-subject status under current classification rules if the proposal is eventually finalized.
Sources
- https://www.fragomen.com/insights/united-states-uscis-proposes-new-fee-of-over-dollar100000-for-h-1b-cap-subject-petitions.html
- https://eiglaw.com/dhs-proposes-103265-fee-for-h-1b-cap-petitions/
- https://public-inspection.federalregister.gov/2026-17324.pdf
- https://www.govinfo.gov/content/pkg/FR-2026-08-25/pdf/2026-17324.pdf
- https://www.law.cornell.edu/uscode/text/8/1356
- https://www.federalregister.gov/documents/2026/09/10/C1-2026-17324/fee-for-certain-h-1b-petitions
This article provides general information and does not constitute legal advice. Immigration outcomes depend on individual facts and current law.
For an employer preparing next year’s hiring budget, the relevant question is whether the proposed filing would be cap-subject. The worker’s presence in the United States or possession of a U.S. graduate degree does not by itself remove that classification. Conversely, an extension or employer change should not be priced as a new cap filing without checking the actual case. This proposal warrants a separate budget scenario, but its publication and closed comment period do not create a bill that must be paid today.
The proposed $103,265 charge also needs its own legal analysis rather than being combined automatically with headlines about a separate $100,000 proclamation payment. The measures arise from different instruments and have different scope. DHS’s statutory cost-recovery explanation supports its proposal but does not establish that the final amount, implementation date, or any future challenge has been settled. Before changing a filing plan, verify the operative fee schedule and any final rule; do not assume a proposed amount has replaced the fees currently applicable to the case.
Questions Clients Are Asking#
Does this fee apply to H-1B renewals or transfers?
Not automatically. The proposal applies to cap-subject petitions. Renewals, extensions, and employer transfers are generally not cap-subject unless the underlying petition independently requires cap counting under existing classification rules. The classification of the particular filing controls; do not infer it from the label alone.
Are advanced degree holders exempt from the new fee?
No. The proposed text explicitly states the fee applies to cap-subject petitions including those eligible for the U.S. advanced degree exemption, meaning that exemption affects cap allocation, not this fee. Being physically present in the United States is likewise not an automatic exemption from the proposal.
Is the $103,265 fee currently in effect?
No confirmed effective date exists. The comment period closed September 24, 2026, but DHS has not published a final rule, so the fee is not currently owed under this proposal. Existing applicable filing fees remain separate and must still be checked for the actual application.