The 30-day public comment window on what would be the most expensive filing fee ever imposed on an immigration benefit request closed on September 24, 2026, marking a pivotal moment in the ongoing battle over the future of the H-1B visa program.
The Department of Homeland Security (DHS) proposes to establish a $103,265 fee, payable at the time of filing, for all H-1B cap-subject petitions, including those eligible for the advanced degree exemption, which would be imposed in addition to all other applicable fees or payments.
This fee would serve 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).
A Six-Figure Fee on Top of Existing Costs
To understand the magnitude of this proposal, consider the current cost landscape.
Government fees typically run from about $1,700 for small employers to $3,400+ for larger companies (I-129 base fee, ACWIA training fee, fraud prevention fee, and asylum program fee), with optional premium processing at $2,965.
The proposed $103,265 charge would dwarf all of these combined.
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. If finalized as written, it would be the single largest fee ever imposed on an immigration benefit request in the history of the agency.
The proposed fee is separate from, and would be charged on top of, the $100,000 payment required by Presidential Proclamation 10973. DHS states in the rule that the two rest on different legal authorities and that a petitioner subject to both would pay both.
Although the $100,000 proclamation fee is currently court-blocked, the theoretical combined exposure could exceed $200,000 per cap-subject petition.
The $8.8 Billion Revenue Target
A footnote in the notice shows the math behind the $103,265 figure: total costs to be recovered of roughly $8,777,488,350, divided by the projected 85,000 cap-subject petitions issued annually.
Perhaps most notably, DHS does not justify the fee based on the cost of adjudicating an individual H-1B petition. Instead, the agency proposes using H-1B cap filings as a funding mechanism to support a broad range of immigration-related government functions across multiple federal agencies. This represents a significant departure from the traditional fee-for-service model generally associated with immigration benefit requests and is likely to be a focal point of public comments and any legal challenges that may arise if the rule is finalized.
DHS states it will use this additional income to fund immigration-related work across six federal agencies, most of it outside USCIS.
The scope of this cost-recovery model — which sweeps in everything from immigration court operations to consular visa processing — is unprecedented and raises fundamental questions about whether a single class of visa petitioners can be made to subsidize the entire immigration system.
Who Is Affected — and Who Is Not
Petitions selected under the standard 65,000-annual-cap fall squarely within the scope of the proposed rule. That means 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.
This includes petitions filed under the 20,000-visa advanced degree exemption for holders of U.S. master's degrees or higher.
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 would also not apply to petitions to extend or amend existing H-1B status or to change an existing H-1B to a different employer.
DHS's own analysis estimates the rule would have a significant economic impact on 11,051 small entities (76% of the small entities that filed cap-subject petitions in FY 2025) and identifies no alternative that would reduce that burden.
An Aggressive Comment Period Draws Industry Opposition
A 30-day window on an economically significant rule with an $8.8 billion annual price tag is aggressive. Executive Order 12866 contemplates 60 days as the norm for significant rules.
Despite the compressed timeline, the proposal drew significant pushback.
TechNet, an industry organization whose members include Apple, Amazon, Google parent Alphabet, Meta, OpenAI and Anthropic, submitted its opposition Thursday as the Department of Homeland Security's public-comment period on the proposed rule came to a close.
The organization said the cost would create a major barrier for startups and smaller employers while weakening companies' ability to recruit workers for specialized positions. It also questioned DHS's legal authority, cost calculations and assessment of the proposal's broader economic effects. TechNet asked the department to withdraw the rule and develop an alternative approach with employers.
The organization argues that American technology companies require access to specialized international workers, particularly as competition with China intensifies in artificial intelligence and other advanced technologies.
The Shadow of Prior Litigation
This proposal arrives in the wake of the administration's first attempt at a six-figure H-1B fee.
On June 8, 2026, a federal judge in Massachusetts ruled that the $100,000 fee imposed on certain H-1B petitions by a September 19, 2025, Presidential Proclamation is unlawful. The case is State of California, et al., v. Markwayne Mullin, et al. The court found that the fee violates U.S immigration and administrative laws. The judge declared the $100,000 fee unlawful and ordered the federal government to immediately stop requiring payment of the fee.
The U.S. Court of Appeals for the First Circuit denied the government's motion to stay the district court order. USCIS has acknowledged the motion denial and will not collect fees at this time.
The litigation in State of California v. Mullin is not over. The First Circuit's decision addresses only the stay; the government's appeal on the merits remains pending, and further appellate proceedings — potentially including Supreme Court review — are possible.
This move follows a series of ongoing legal battles regarding the 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.
Timeline and What Comes Next
DHS accepted public comments on the $103,265 proposal through Thursday. The agency will review those submissions before deciding whether and in what form to issue a final rule.
The FY 2028 cap season, with registration in approximately March 2027, would require DHS to finalize the rule within roughly five months of the comment deadline. That is possible but would be unusually fast. The FY 2029 cap season, with registration in approximately March 2028 and filings beginning April 1, 2028, is the realistic planning horizon.
Litigation is also likely if the rule is finalized, which could further delay implementation.
The proposed rule does not address whether the fee would be returned if a petition is denied, rejected, or withdrawn.
That omission alone is likely to generate legal and practical scrutiny.
What Employers and Workers Should Do Now
For employers that rely on the H-1B cap process, the closing of the comment period marks the beginning of a waiting game.
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.
In the meantime, employers should assess potential budgetary implications, explore alternative immigration pathways where appropriate, and stay in close contact with experienced immigration counsel. For international workers — including international students on OPT who aspire to H-1B sponsorship — the proposal signals a continued trend of escalating costs that could reshape which employers are willing and able to sponsor cap-subject petitions.
The fee is paid by the petitioner — the employer. But its consequences reach the worker: fewer cap petitions filed. Cap-exempt employers become relatively more attractive — universities and research non-profits are outside both the fee and, in many cases, the Proclamation.
As one law firm observed,
the proposed $103,265 H-1B cap fee represents one of the most consequential immigration-related fee proposals in recent memory.
Whether it survives the rulemaking process — and the near-certain legal challenges to follow — will be a defining question for U.S. employer-sponsored immigration in the months ahead.