H-1B Fee Proposal
DHS Just Proposed a $103,265 Fee on Every H-1B Cap Petition. It Is Not the Executive Order Fee.
On August 25, 2026, DHS published a notice of proposed rulemaking that would add $103,265 to every H-1B cap-subject petition — on top of every other fee employers already pay. This is not the $100,000 proclamation fee. It is a separate regulatory action with a broader scope, a different legal basis, and a 30-day comment window that closes in late September.
What DHS published in the Federal Register this morning
On August 25, 2026, the Department of Homeland Security published a Notice of Proposed Rulemaking in the Federal Register proposing to add a new $103,265 fee to every H-1B cap-subject petition. The rule is identified as RIN 1615-AD20 under DHS Docket No. USCIS-2026-0298. It cleared White House Office of Information and Regulatory Affairs review in the days before publication — a required step before any significant regulatory action.
The proposed fee would apply at the time of filing, on top of all other petition fees already required by USCIS. It covers every H-1B cap-subject petition: both regular cap petitions and petitions eligible for the advanced degree exemption. Whether the beneficiary is inside the United States filing for a change of status, or outside the United States filing through consular processing, the proposed fee applies to both.
The 30-day public comment window opens today. Comments to the docket close approximately September 24, 2026. A final rule cannot be published until DHS responds to significant public comments, which means the earliest any finalized fee could take effect is sometime in late 2026 — and more likely 2027 for a fully processed rulemaking.
How they got to exactly $103,265
The proposed fee amount is derived directly from a cost calculation in the NPRM. DHS identified total federal costs for administering the lawful immigration system at $8,777,488,035. That figure is not limited to USCIS adjudication costs — it is a government-wide number DHS says covers costs at DHS, DOJ, DOS, and DOL. The activities included span adjudication of immigration benefits, fraud detection and national security vetting, systems modernization, records and fee collection operations, immigration court costs at DOJ, consular processing costs at DOS, and labor standards enforcement at DOL.
DHS divided that $8.7 billion figure by an assumed annual volume of 85,000 cap-subject petitions — the statutory cap is 65,000 regular cap plus 20,000 advanced degree exemption. That arithmetic produces $103,264.57. Rounded to the nearest $5 increment, the proposed fee is $103,265.
Two numbers will draw the most scrutiny during the comment period: the $8.7 billion cost figure, and the 85,000-petition denominator. On the cost side, the argument that H-1B cap petitioners should absorb DOJ immigration court costs and DOS consular costs — not just USCIS adjudication expenses — is the core policy claim employers will challenge most directly. On the denominator side, the FY2027 cap drew registrations in the hundreds of thousands. Using 85,000 approved slots rather than total registrations as the divisor produces a far higher per-petition figure than a registration-based calculation would.
How this is different from the executive order fee
The confusion between this proposed regulation and the $100,000 proclamation fee will spread quickly, so it is worth being precise. Presidential Proclamation 10973, signed September 19, 2025, imposed a $100,000 fee on new H-1B petitions where the beneficiary was outside the United States and needed consular processing to enter. Its scope was limited to overseas applicants. Extensions, amendments, and change-of-status petitions inside the United States were exempt. That proclamation expires September 20, 2026.
The NPRM published today is a different instrument entirely. It proposes a permanent fee through notice-and-comment rulemaking under DHS's statutory fee authority — not a presidential proclamation under Section 212(f) of the INA. Its scope is broader: every cap-subject H-1B petition, regardless of whether the beneficiary is inside or outside the country. A person on F-1 status inside the United States who wins the lottery and files a change-of-status petition was never covered by the proclamation, but would be subject to this proposed fee if finalized.
The legal mechanism is also different. A court challenge to a finalized version of this rule would need to argue against DHS's authority to set fees under the Homeland Security Act and INA fee provisions — a different legal question from the constitutional and APA arguments that blocked the proclamation fee in federal court. The two actions can be challenged, modified, or withdrawn independently of each other.
Who is in scope and who is not
Cap-subject petitions — every H-1B petition that goes through the annual lottery, including the 65,000 regular cap and the 20,000 advanced degree exemption — are in scope. The advanced degree exemption does not make a petition cap-exempt. Those petitions are still counted against the annual cap and would be subject to this proposed fee.
Cap-exempt petitions are not in scope. Institutions of higher education, affiliated nonprofits, nonprofit research organizations, and government research organizations have been cap-exempt for decades. Employers in these categories file H-1B petitions without going through the lottery and would not pay this fee under the proposal.
The competitive gap this creates is significant. If the rule is finalized, a for-profit company hiring through the cap pays $103,265 plus all other fees — more than $109,000 per petition with premium processing. A university hiring the same person for a comparable role would pay this fee: nothing. That disparity already exists in smaller form with the Fraud Prevention and Detection fee, but $103,265 raises it by an order of magnitude, and it will be the loudest single complaint from both sides — cap-exempt employers who see it as a competitive advantage and cap-subject employers who will pay it.
What stacks on top of what you already pay
An H-1B cap-subject petition already carries multiple mandatory fees. For a large employer: $1,110 base filing fee, $1,500 American Competitiveness and Workforce Improvement Act fee, $500 Fraud Prevention and Detection fee, $600 Asylum Program Fee, and $2,805 for premium processing — which nearly every cap-subject employer uses to get a decision within 15 business days. The running total for a standard large employer using premium processing is approximately $6,500 per petition.
Add $103,265 and the per-petition cost exceeds $109,000. For an employer sponsoring thirty H-1B cap workers per year, that is more than $3 million in fees annually, before attorney costs or relocation expenses.
The fee is due at filing, not at approval. An employer whose petition is denied still paid $103,265. Under premium processing, a denial generates a case closure rather than a refund. USCIS's existing fee structure works this way across the board, and the proposed fee follows the same mechanic. The risk of paying a non-refundable six-figure fee on a petition that may be denied in the current adjudication environment — where USCIS has been issuing RFEs at significantly higher rates than in prior years — is part of what employer comment letters will raise.
The 30-day comment window
Public comments go to regulations.gov under DHS Docket No. USCIS-2026-0298. The window closes approximately September 24, 2026. This is not a vote — DHS can finalize the rule over objections, modify the fee amount or scope in response to comments, or withdraw the NPRM entirely. All three outcomes are possible.
The comments most likely to land on the record: employer and business groups objecting to the fee level; immigration practitioners challenging whether DOJ immigration court and DOS consular costs properly belong in a fee borne exclusively by H-1B cap petitioners; university and research institution groups noting that cap-exempt employers bear no share of this proposed cost; and individual employers pointing out that a fee of this size makes H-1B cap hiring economically prohibitive for small and mid-size companies that cannot absorb six figures per worker.
The 30-day period is unusually short for a significant proposed rule. Most major rulemakings allow 60 days. A compressed timeline limits the time available to prepare substantive legal and economic analysis, and that compression may itself be raised as a procedural defect in any subsequent legal challenge to the final rule.
What the FY2028 cap season looks like if this gets finalized
The FY2027 H-1B cap closed in July 2026. No new cap-subject petitions are accepted until the FY2028 registration window, which typically opens in March 2027. For the $103,265 fee to affect FY2028 cap petitions, DHS would need to publish a final rule with an effective date before April 2027, when most cap petitions are filed. A comment period closing in September 2026, followed by agency response and final rule publication, could produce a rule in early 2027. The OIRA clearance already completed signals the administration intends to move quickly, but regulatory timelines regularly slip.
If the rule is not finalized before April 2027, FY2028 cap petitions would not be affected. FY2029 would then be the first exposure window. For employers who plan H-1B programs on annual cycles, the uncertainty means building two scenarios for the next planning round: one where the fee is in place by April 2027, one where it is not. The cost difference between those two scenarios, at any meaningful hiring volume, is substantial enough to affect budget planning now.
This article is informational only and does not constitute legal advice. The proposed rule has not been finalized. The fee amount, scope, effective date, and legal status are all subject to change based on public comments, administrative decisions, and any subsequent legal challenges. Consult a licensed immigration attorney before making petition or workforce planning decisions based on a proposed rule.