The Trump administration is making a second attempt to impose a six-figure cost on employers seeking to hire H-1B workers — and this time, it's going through formal rulemaking.
On August 25, 2026, the U.S. Department of Homeland Security (DHS) published a proposed rule to establish a $103,265 fee for all cap-subject H-1B petitions, including bachelor's cap and advanced-degree quota cases.
The charge is a new, standalone fee 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. 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
DHS is proposing the $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 would come on top of existing H-1B filing costs, anti-fraud fees, asylum program fees, ACWIA fees, registration fees, premium processing fees (if applicable), and other immigration-related expenses.
The fee would apply to all cap-subject employers, regardless of size.
However, the fee would not apply to cap-exempt petitions — those filed by universities, nonprofit research organizations, and government research organizations — or to petitions to extend or amend existing H-1B status or to change an existing H-1B to a different employer.
How DHS Arrived at the Number
DHS says the government spends about $8.8 billion a year on immigration-related costs. Divide that by the 85,000 H-1B visas available each year, and that comes out to roughly $103,265, the proposed price tag.
The proposed rule describes DHS's authority to establish and collect fees sufficient to recover the costs of providing immigration services. Historically, USCIS fee rules generally recovered only USCIS's costs. 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.
DHS says 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.
However, legal experts contend the fee remains a broad tax, likely exceeding DHS authority.
Devastating Impact on Small Businesses
DHS's own regulatory analysis paints a stark picture.
If finalized at $103,265, the fee would dramatically change the economics of sponsoring a new cap-subject H-1B worker. DHS estimates that the rule would have a significant economic impact on 11,051 small entities, representing 76% of the small entities in its analysis that filed cap-subject petitions in fiscal year 2025. The agency also expects the fee could reduce demand.
The proposal will need to go through a 30-day public comment period, but if enacted, the fee would dramatically change the economics of a visa program that is widely used by tech companies, consulting firms, and startups. It also runs the risk of potentially giving the largest companies another advantage over smaller competitors.
For a large technology company hiring hundreds of specialized workers, the cost could run into millions of dollars. For a startup, smaller technology company, hospital, or other employer with a limited recruitment budget, the decision to sponsor an H-1B worker could become considerably harder.
What This Means for Foreign Workers and International Students
While the fee is technically paid by the employer, the ripple effects would be profound for foreign nationals and international students seeking career pathways in the United States.
An additional $103,265 charge could change which employers are prepared to use the H-1B cap at all, with the greatest impact likely to fall on smaller employers, early-career hires, and international students moving from F-1 OPT or STEM OPT to H-1B status.
For an international student planning the familiar U.S. master's degree-to-OPT-to-H-1B route, the proposed rule does not impose a personal $103,265 payment. Instead, it could make the student's future employer far more selective about sponsoring a cap-subject H-1B. The proposal could raise the cost of accessing the H-1B lottery without directly raising the fee paid by the foreign worker.
Companies recruiting at U.S. universities find that international students account for approximately 75% to 80% of full-time graduate students in AI-related fields, such as computer and information sciences.
Critics warn the fee threatens America's ability to retain this talent pool.
The Legal Backdrop: From Proclamation to Rulemaking
The proposed rule does not exist in a vacuum.
On September 19, 2025, President Donald Trump issued Proclamation 10973, which imposed a $100,000 fee for new H-1B petitions filed for beneficiaries located outside of the United States. The administration stated that the fee was intended to address perceived abuse of the H-1B program and protect U.S. workers.
On June 8, 2026, the U.S. District Court for the District of Massachusetts issued a decision vacating the policy implementing that presidential proclamation. The court's ruling in State of California, et al. v. Mullin, et al. held that the payment requirement is an unconstitutional tax imposed without congressional authorization and that the agency actions implementing it violated the Administrative Procedure Act (APA).
On July 24, 2026, the First Circuit Court of Appeals declined to pause that ruling, so the $100,000 fee is not being collected while the appeal continues.
The administration's appeal to the U.S. Court of Appeals for the First Circuit remains pending.
The 2025 fee came from a presidential proclamation, and it applied to certain H-1B workers entering the United States from abroad. The 2026 proposal instead uses notice-and-comment rulemaking, and it would reach all cap-subject petitions regardless of where the worker is located.
Immigration attorney Elizabeth Ricci told Fortune this distinction gives the $103,265 fee policy "a better chance of surviving the litigation everyone expects."
Comment Period and Next Steps
Written comments must be submitted on or before September 24, 2026.
Comments must be filed through regulations.gov under DHS Docket No. USCIS-2026-0298. Emails and letters to DHS officials do not count as comments. USCIS is not accepting mailed comments or digital media.
DHS published it on August 25, 2026, with a thirty-day window for public comments closing on September 24, 2026. After reviewing comments, DHS will decide whether to finalize, revise, or withdraw the rule.
The dollar amount, the scope, and the effective date can all be revised in the final rule, and a proposal can also be withdrawn or challenged in court before it ever takes effect.
Significant legal challenges to the rule are anticipated.
What Employers and Applicants Should Do Now
The proposal is not effective at this time. DHS will accept public comments for 30 days after publication, and the agency would need to consider those comments before issuing any final rule. Employers should not add the proposed fee to current filings unless and until a final rule establishes an effective date and applicable transition provisions.
Employers are advised to start to plan now, albeit without treating the proposal as settled law. Businesses expecting to sponsor cap-subject workers should model the potential cost and identify cases where cap-exempt H-1B employment or another immigration category could provide an alternative.
Affected employers, industry groups, and individuals are strongly encouraged to submit public comments before the September 24 deadline. Given the proposal's magnitude —
over 10 years, the rule would cost employers $74.9 billion
— this rulemaking is expected to draw intense public scrutiny, robust legal challenges, and significant political debate in the months ahead.
ClinchLaw will continue to monitor this rulemaking and provide updates as the public comment period closes and any final rule or litigation developments emerge.