On August 25, 2026, the Department of Homeland Security published a proposed rule that would add a $103,265 fee to every H-1B cap-subject petition, on top of all fees currently required. The rule is not final. DHS is accepting public comments through September 24, 2026.
Your Questions, Answered
Who does the proposed $103,265 H-1B fee apply to? All H-1B cap-subject petitions, including those filed under the advanced degree (master’s) exemption, whether filed for change of status in the United States or for consular notification abroad. Cap-exempt petitions, such as those filed by universities and nonprofit research organizations, are not subject to the fee.
How much is the proposed H-1B fee, and when would it be due? $103,265, payable at the time of filing, in addition to every other fee currently required for an H-1B petition (base filing fee, fraud prevention fee, ACWIA fee, Asylum Program Fee, and any others that apply). It would not be due on any petition until DHS finalizes this rule and sets an effective date, which has not happened yet.
Is this the same as the $100,000 H-1B fee from 2025? No. That fee came from a presidential proclamation and has been vacated by a federal court; it is not currently in effect. This is a new, separate fee created through formal rulemaking. See below for how the two relate.
When would the proposed H-1B fee take effect? Not before DHS reviews comments and issues a final rule. There is no effective date yet, and no fixed timeline for when a final rule might be published. The next H-1B Cap season will take place in spring 2027, and petition filings generally open in early April.
Will the proposed H-1B fee be challenged in court? Very likely, once it is finalized. Immigration and employer groups are expected to challenge the size of the fee and DHS’s use of H-1B revenue to fund other agencies’ operations. Unlike the 2025 proclamation, this fee is being proposed through notice-and-comment rulemaking, which gives it firmer procedural footing, but a challenge on the merits is still expected.
What should H-1B employers do now? Nothing changes today. Continue filing H-1B petitions under the current fee schedule. The proposed fee applies only to future cap-subject filings once finalized. Consult with GILT’s business immigration counsel to understand how this proposed rule, and the other proposed H-1B and prevailing wage changes moving at the same time, could affect your FY 2028 cap season planning and budget.
Digging Into The Details
The DHS Timeline and Justification for the New H-1B Fee
DHS published the proposed rule on August 25, 2026, and is accepting public comments through September 24, 2026. From there, DHS must review those comments before it can issue a final rule, and it has not signaled when that might happen.
DHS says its most recent biennial fee review identified a funding gap in the costs of administering the immigration system, which USCIS funds almost entirely through collected fees rather than congressional appropriations. Rather than raising fees broadly, DHS is proposing to close that gap with this single fee on H-1B cap-subject petitions, projected to generate roughly $8.8 billion a year for USCIS, ICE, CBP, EOIR, DOS, and DOL.
Which H-1B Petitions the Proposed Fee Would Cover
The fee would apply to all H-1B cap-subject petitions, including both the 65,000 regular cap and the 20,000-slot advanced degree exemption, regardless of whether the beneficiary is inside or outside the United States. It would not apply to cap-exempt petitions, including H-1B extensions, amendments, or cap-exempt change-of-employer petitions, or cap-exempt petitions filed by universities and nonprofit research organizations.
How the Proposed $103,265 Fee Differs From the 2025 $100,000 H-1B Fee
These are two separate fees, created under two different legal authorities, and employers should not confuse them:
The 2025 proclamation fee ($100,000). Issued by presidential proclamation on September 19, 2025, for certain H-1B petitions involving beneficiaries outside the United States. A federal district court vacated the policy on June 8, 2026, and the First Circuit declined to stay that ruling on July 24, 2026, so it is not currently in effect. The proclamation is set to expire September 20, 2026, unless renewed, and the government’s appeal is ongoing.
The 2026 proposed rule ($103,265). Covered in this alert, this comes from DHS rulemaking under USCIS’s statutory fee-setting authority, not a proclamation. It would apply to all cap-subject petitions regardless of beneficiary location and is proposed as a permanent fee rather than a temporary executive action.
Why this matters: because the two rest on different legal authority, they are theoretically independent and could stack, potentially exposing a single petition to both. A court striking down one would not affect the other.
What the Proposed H-1B Fee Means for U.S. Employers
No immediate change. Current H-1B cap-subject filings are not affected while this remains a proposal.
Significant cost exposure if finalized. A $103,265 fee, on top of existing filing fees, would substantially raise the cost of sponsoring H-1B workers through the cap, particularly for high-volume sponsors.
Plan around uncertainty, not finality. This proposal, the unresolved proclamation litigation, and other proposed rules on H-1B wages and biometric fees are all moving at once. Build flexibility into FY 2028 cap season budgeting rather than assuming any one outcome.
Nothing here is final. DHS could revise or drop this proposal after reviewing comments, and a court challenge is likely if it is finalized, much as we saw with the 2025 proclamation fee. We are tracking this rule alongside the proclamation litigation and other proposed H-1B rules and will provide updates as they develop.
If your organization sponsors H-1B workers, now is a good time to talk through what this proposal and the broader proposed changes to H-1B fees and wage rules could mean for your FY 2028 cap season planning. Please reach out to our office at 610-975-4599 or email info@giltlaw.com to set up a consultation or appointment.
This alert is for general informational purposes and does not constitute legal advice.
