$103,265 H-1B Fee: What DHS’s Proposed Rule Says

DHS has proposed a new $103,265 fee for cap-subject H-1B petitions, potentially raising costs for employers and changing visa strategies.

The Department of Homeland Security has proposed an additional $103,265 fee for every cap-subject H-1B petition, including petitions under the U.S. advanced-degree exemption. The charge would be due when the petition is filed and would come on top of other applicable government fees, according to USCIS.

The fee is not yet in effect. It appears in a notice of proposed rulemaking published on August 25, 2026, and is subject to a 30-day public-comment period before DHS may issue a final rule. The proposal does not specify when a final fee would take effect.

If finalized, the measure could sharply increase the cost of hiring workers through the annual H-1B cap. DHS itself estimates that it would significantly affect 11,051 small entities, representing 76% of the small entities that filed cap-subject petitions in fiscal year 2025, according to the proposed rule.

What Does the H-1B Fee Proposal Really Say?

The proposal would apply at the petition stage—not during the initial electronic registration. Only employers whose registrations are selected and who proceed with cap-subject H-1B petitions would face the additional charge.

Key provisions include:

• Fee: $103,265 per cap-subject H-1B petition
• Timing: Payable when the petition is filed
• Additional cost: Imposed on top of other required fees or payments
• Covered cases: Regular-cap petitions and U.S. advanced-degree petitions
• Excluded cases: Cap-exempt petitions, including petitions by institutions of higher education, affiliated non-profit entities, nonprofit or governmental research organizations, as well as petitions for workers who have already been counted against the cap

DHS calculated the fee by dividing approximately $8.78 billion in government immigration-system costs by a projected 85,000 annual petitions. The agency says the revenue would support adjudications, fraud detection, security vetting, immigration courts, consular processing, labor enforcement and other operations across several federal agencies, as detailed in the Federal Register notice.

Based on our team’s review, the implementation timeline remains difficult to predict because DHS must complete the notice-and-comment rulemaking process, which commonly takes six months or longer. However, DHS may seek to finalize the rule before the next H-1B cap filing season begins in April 2027.

We also expect the rule to face legal challenges. However, filing a lawsuit would not automatically prevent the rule from taking effect, and nationwide relief may not be available. Because litigation can take months or longer, the fee could affect many employers and foreign professionals while any legal challenge remains pending.

This proposal is separate from the earlier $100,000 H-1B payment required under a 2025 presidential proclamation. In June 2026, the U.S. District Court for the District of Massachusetts vacated the DHS guidance implementing that payment. The government appealed, but in July 2026, the U.S. Court of Appeals for the First Circuit declined to reinstate the payment while the appeal is pending. As a result, USCIS is not currently collecting the $100,000 payment, although the government’s appeal on the merits remains pending.

What Does the H-1B Fee Mean for Current and Future Applicants?

Because employers file H-1B petitions, the direct financial obligation would fall on sponsoring organizations rather than individual workers. Applicants could nevertheless feel the effects if employers reduce sponsorship, prioritize only the most critical roles or limit hiring to candidates whose expected value justifies the added cost.

Current H-1B workers may be less exposed. Petitions that are not subject to the annual cap—generally including qualifying extensions and job changes for workers already counted against the cap—would not carry the proposed fee under the rule as written. However, a worker moving from cap exempt to cap-subject employment and previously not counted against the cap may still be subject to the proposed fee.

Prospective applicants and employers should remember that this remains a proposal. Its scope, amount or implementation could change following public comments and before any final rule takes effect.

Employers and foreign professionals may wish to reassess their immigration strategies before the next H-1B cap season. Depending on the position and the candidate’s qualifications, possible options may include employment with a cap-exempt organization or O-1 classification for individuals who can demonstrate sustained distinction in their field. Because these alternatives have different eligibility and sponsorship requirements, employers and candidates should evaluate them early.

North America Immigration Law Group can help qualified professionals and their employers evaluate whether the O-1 visa may provide an alternative path. Contact our legal team to discuss whether O-1 classification may fit your background and employment plans.