The Department of Homeland Security has proposed what would be the most expensive filing fee in the history of U.S. immigration: $103,265 per cap-subject H-1B petition. If finalized, the charge would fundamentally reshape the economics of employer-sponsored immigration and could have far-reaching consequences for businesses, international students, and the broader U.S. labor market.
What the Proposed Rule Does
On August 25, 2026, 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.
Under the proposed regulation, employers filing an H-1B cap-subject petition would be required to pay the new $103,265 fee at the time of filing, in addition to all other applicable government filing fees.
The fee 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.
If finalized as written, it would be the single largest fee ever imposed on an immigration benefit request in the history of the agency.
DHS is proposing the fee for every new fiscal year (FY) 2028 H-1B cap-subject petition on top of all existing fees, and the fee would apply to all cap-subject employers, regardless of size.
Who Is Exempt
The fee would not apply to cap-exempt petitions — i.e., 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.
It would also not apply to petitions on behalf of individuals who hold H-1B status and are transferring to a new employer.
How DHS Calculated the Fee
The $103,265 figure is not arbitrary — it is the result of a simple division.
DHS identified total costs to be recovered of $8,777,488,035, divided that figure by an assumed annual volume of 85,000 cap-subject petitions, and arrived at $103,264.57, which it rounded to the nearest $5 increment. In other words, the fee is not a measure of what it costs USCIS to adjudicate an H-1B petition — it is a revenue target divided by a headcount.
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.
The proposed revenue allocation breaks down as follows:
USCIS would receive 34.2% ($3.0 billion), EOIR 33.7% ($2.96 billion), DOL 13.8% ($1.21 billion), ICE 11.9% ($1.05 billion), DOS 5.5% ($484 million), and CBP 0.9% ($76.2 million).
DHS said the funding would support activities including immigration adjudications, fraud detection, national security vetting, labor compliance enforcement, visa screening, immigration court operations and border-related biometric systems.
Connection to the Earlier $100,000 Fee
This move follows a series of ongoing legal battles regarding a previous $100,000 H-1B fee enacted via a presidential proclamation, which was struck down and blocked by federal courts for being an unauthorized tax.
Unlike the previous temporary proclamation, this new measure is being pursued through the formal federal rulemaking process to make it permanent.
The presidential proclamation establishing the $100,000 fee is set to expire on September 21, 2026, one year after its issuance, unless extended.
If the $100,000 H-1B fee established under Presidential Proclamation 10973 is revived, an employer would owe both.
Impact on Employers and Small Businesses
The financial burden on employers would be substantial.
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.
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.
Notably, the proposed rule does not address whether the fee would be returned if a petition is denied, rejected, or withdrawn.
What This Means for International Students
The proposal could have particular consequences for international students. F-1 students working pursuant to Optional Practical Training (OPT) frequently rely on the H-1B cap process as a pathway to longer-term employment authorization, and a $103,265 petition fee could alter employers' willingness to sponsor those workers following selection in the H-1B cap.
Unlike the previous proclamation-based payment, which primarily affected certain H-1B workers being hired from outside the United States, the proposed regulatory fee would apply to cap-subject petitions regardless of whether the beneficiary is already in the United States.
Consequently, an employer could potentially face the $103,265 fee when requesting an F-1-to-H-1B change of status for an employee working in the United States on OPT or STEM OPT.
For many international graduates, the practical concern is not paying $103,265 themselves — the proposed fee is imposed on the H-1B petitioner, typically the employer.
However, the downstream effect could be devastating: fewer employers willing to sponsor, reduced hiring pipelines, and a less competitive U.S. position in the global race for talent.
Legal Challenges Expected
Significant legal challenges to the rule are anticipated.
Routing roughly $5.7 billion in fee revenue to DOJ, DOS, and DOL raises Appropriations Clause and Miscellaneous Receipts Act concerns, along with longstanding anti-augmentation principles.
Many immigration attorneys and legal scholars expect these constitutional and statutory arguments to be central to any litigation.
What Happens Next — and What You Should Do
DHS published the proposed rule on August 25, 2026, with a thirty-day window for public comments closing on September 24, 2026.
Stakeholders, employers, industry groups, and affected individuals can submit formal feedback via regulations.gov.
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.
Employers should not add the proposed fee to current filings unless and until a final rule establishes an effective date and applicable transition provisions.
For employers, the immediate priority is clear: evaluate the potential financial impact on upcoming FY 2028 cap cases, consider submitting public comments — especially where specific data on economic impact and labor shortages can be provided — and monitor this rulemaking closely.
For international workers and students, this remains a proposal, not a current filing requirement. But it underscores the importance of early planning around immigration alternatives and close coordination with prospective employers about sponsorship timelines and contingencies.
The public comment period for DHS Docket No. USCIS-2026-0298 closes on September 24, 2026. Comments may be submitted through regulations.gov.