The clock is ticking for employers, workers, and immigration stakeholders to weigh in on one of the most consequential proposed changes to the H-1B visa program in decades.
Written comments on the Department of Homeland Security's proposed $103,265 H-1B fee must be submitted on or before September 24, 2026, with the electronic Federal Docket Management System accepting comments before midnight Eastern time at the end of that day.
The stakes could not be higher. If finalized,
the $103,265 charge would exceed the annual salary of many of the workers it applies to, with the median H-1B wage for a bachelor's degree holder near $99,000.
What the Proposal Would Do
On August 25, 2026, the Department of Homeland Security published a notice of proposed rulemaking that would add a $103,265 fee to every H-1B cap-subject petition, payable at the time of filing, on top of every other fee an employer already pays.
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.
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 $103,265 fee would apply whether the beneficiary is outside the U.S. or already in the country, as long as the petition is cap-subject.
Critically,
cap-exempt petitions, which are filed by institutions of higher education, affiliated nonprofits, and nonprofit or governmental research organizations, would not be subject to this fee.
The fee also would not apply to petitions to extend or amend existing H-1B status or to change an existing H-1B to a different employer.
A Staggering Revenue Mechanism
DHS proposes to establish the fee as a dedicated revenue mechanism to help recover a portion of the federal government's costs of administering the lawful immigration system, including activities carried out by DHS, the U.S. Department of Justice (DOJ), the U.S. Department of State (DOS), and the U.S. Department of Labor (DOL).
The math behind the figure is notable.
DHS has estimated that the fee could raise roughly $8.78 billion a year, based on about 85,000 cap-subject petitions filed annually.
DHS proposes allocating the projected $8.8 billion as follows: USCIS 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).
This cross-agency funding approach has already drawn legal scrutiny.
Critics argue the proposed fee exceeds USCIS's statutory authority, aiming to recover all costs related to administering and enforcing the legal immigration system across numerous agencies, and that using H-1B fees to fund work by another agency that receives appropriations augments that agency's budget from a source Congress never authorized.
From Proclamation to Rulemaking: The Legal Backstory
This proposal did not emerge 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. The fee became effective September 21, 2025, and applied to new H-1B petitions for beneficiaries subject to consular processing.
That fee was struck down in the courts.
On June 8, 2026, the U.S. District Court for the District of Massachusetts granted summary judgment in favor of twenty Democratic state attorneys general on all claims 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.
On July 24, 2026, the U.S. Court of Appeals for the First Circuit denied the U.S. government's request for a stay, leaving the controversial $100,000 H-1B proclamation fee blocked while the appeal continues.
DHS's response has been to pursue a different legal strategy.
Rather than appeal its way back to the $100,000 fee, DHS is proposing to reach a nearly identical number through notice-and-comment rulemaking. That is a materially different legal foundation than a proclamation issued under the President's entry-suspension power, and cost-recovery fee rulemaking is far more insulated from the argument that sank the proclamation.
The 2025 fee came from a presidential proclamation and 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
— a notably broader scope.
What This Means for Employers
The financial impact on employers who sponsor H-1B workers would be transformative.
Government fees for an H-1B petition currently run from about $1,700 for small employers to $3,400 or more for larger companies, with optional premium processing at $2,965.
Adding $103,265 on top would multiply the total cost of sponsorship by a factor of 10 to 50.
Under the proposal, the petitioning employer would be responsible for paying the $103,265 fee to USCIS. Any employer filing a cap-subject petition would need to plan for this cost. Small and mid-sized companies that sponsor even a handful of H-1B workers a year could feel this fast.
The NPRM does not carry forward the national interest exception that gave employers an escape valve under the proclamation. Absent a comment-driven revision, this fee is proposed as a flat cost of any cap-subject H-1B petition, master's exemption included.
What Workers and Applicants Should Know
As of today, this is a notice of proposed rulemaking, not a fee currently due from OPT students or H-1B petitioners.
Nothing changes today. Employers should continue filing H-1B petitions under the current fee schedule. The proposed fee applies only to future cap-subject filings once finalized.
That said, workers in H-1B status or those hoping to transition from student visas to H-1B employment should understand the risk. If implemented, many employers — particularly small businesses and startups — may significantly reduce or eliminate H-1B sponsorship entirely, narrowing employment-based immigration pathways.
How to Submit Comments
Members of the public, including employers and other members of the business community, can submit public comments at regulations.gov. Public comments must include the rule's document ID: USCIS-2026-0298-0001.
Emails and letters to DHS officials do not count as comments. USCIS is not accepting mailed comments or digital media.
Immigration advocacy groups have raised concerns about the comment window itself.
Commenters should note that 30 days is not enough time to review the potential impacts of the rule and prepare a substantive comment. There is no explanation in the rule for why the standard 60-day period prescribed by Executive Order 12866 was not provided.
What Comes Next
The public comment period is scheduled to end on September 24, 2026. After that date, DHS will review the comments. The Department could revise the proposal, issue a final rule, delay action, or withdraw the proposal.
If the rule is finalized, the fee will apply to cap-subject petitions filed in 2027. Significant legal challenges to the rule are anticipated.
Courts will ultimately need to decide whether a proposed fee this size is arbitrary and capricious, disconnected from the actual cost of adjudicating a petition, and whether DHS has the statutory authority to set an immigration fee at this scale.
For now, the most important action for affected employers and individuals is clear: submit detailed, data-backed comments before the September 24 deadline.
Specific, documented, company-level comments are what move the needle and what preserve arguments for later litigation.
---
This article is for informational purposes only and does not constitute legal advice. If you have questions about how the proposed H-1B fee may affect your immigration case, consult with a qualified immigration attorney.