Proposed $103,265 H-1B Cap Fee: Frequently Asked Questions

• What has DHS proposed?

  The Department of Homeland Security (DHS) has proposed a new $103,265 fee for each H-1B cap-subject petition. The fee would be paid when the H-1B petition is filed and would be in addition to the existing government filing fees associated with an H-1B petition.

• Is the new $103,265 fee currently in effect?

  No. This is a proposed rule, not a final rule. Employers are not currently required to pay the $103,265 fee. The proposal is subject to the federal rulemaking process, including a public comment period ending September 24, 2026, before DHS can issue a final rule.

• When could the new fee take effect?

  If finalized, the fee would not affect employers until the FY2028 H-1B cap filing season in spring 2027 at the earliest. The FY2027 H-1B cap filing season has already concluded, so there are no additional FY2027 cap-subject petitions to which the proposed fee could apply.

• Which H-1B petitions would be subject to the proposed fee?

  The fee would apply to H-1B cap-subject petitions, including petitions filed under:

  • The regular 65,000 H-1B annual cap; and

  • The 20,000 U.S. advanced-degree exemption, commonly referred to as the U.S. master's cap

  The fee would apply uniformly to covered cap-subject petitioners.

• Would the fee apply when an employer files an H-1B extension?

  No. The proposed fee is limited to cap-subject H-1B petitions. An extension for an H-1B worker who has already been counted against the H-1B cap generally would not be subject to the additional $103,265 fee.

• Would the fee apply to an H-1B change of employer or "transfer"?

  Generally, no. A change-of-employer petition for an H-1B worker who has already been counted against the cap would generally not be a cap-subject petition and therefore would not be subject to the proposed $103,265 fee.

• Would cap-exempt employers have to pay the fee?

  No. The proposed fee would not apply to qualifying cap-exempt H-1B petitions, including petitions filed by certain institutions of higher education, nonprofit research organizations, and governmental research organizations.

• Would the proposed fee apply to H-1B1 petitions for citizens of Chile or Singapore?

  No. The proposal concerns H-1B cap-subject petitions and would not apply to treaty-based H-1B1 petitions for eligible citizens of Chile or Singapore.

• Is the $103,265 fee the total cost of filing an H-1B cap petition?

  No. The proposed $103,265 fee would be an additional fee. Employers would remain responsible for other applicable USCIS filing fees and payments associated with the H-1B petition.

• How is this proposal different from the separate $100,000 H-1B payment announced in 2025?

  The proposed $103,265 fee is a separate regulatory fee based on different legal authority from the $100,000 payment imposed under the September 2025 Presidential Proclamation.

  A federal district court vacated the agency guidance implementing the proclamation's $100,000 payment in June 2026, and the government has appealed that decision. The proclamation is currently scheduled to expire on September 21, 2026 unless extended or renewed.

• Could an employer ever be required to pay both the $100,000 proclamation payment and the proposed $103,265 fee?

  Potentially. DHS expressly states that the proposed $103,265 fee would be in addition to any separately required proclamation payment. Therefore, if the $100,000 proclamation payment becomes enforceable again and the proclamation is extended or renewed, an employer subject to both requirements could potentially be required to pay more than $203,000 in supplemental payments, before considering the standard H-1B filing fees.

• Why is DHS proposing such a large fee?

  DHS states that the fee is intended to recover approximately $8.8 billion annually in costs associated with administering the broader U.S. immigration system. The revenue would support not only USCIS operations but also immigration courts, labor and immigration enforcement, consular visa processing, border operations, and other immigration-related government activities.

  DHS calculated the proposed fee based on approximately $8.78 billion in identified costs divided among an anticipated 85,000 annual fee-paying H-1B cap petitions.

• Could the amount of the fee change before the rule is finalized?

  Yes. Because this is a proposed rule, DHS could modify the proposal in response to public comments before issuing a final rule. The final rule could differ from the current proposal, including with respect to the fee amount, scope, or implementation.

• Is the proposed rule expected to face legal challenges?

  Yes. Significant litigation is expected if DHS finalizes the rule. A federal court already vacated the agency's implementation of the separate $100,000 proclamation payment, and the proposed $103,265 fee raises distinct questions regarding DHS's statutory authority to impose such a substantial fee on H-1B cap employers to fund costs across the broader federal immigration system. Accordingly, litigation could delay, temporarily block, or ultimately prevent implementation of the fee.

• What happens next?

  DHS is accepting public comments on the proposed rule through September 24, 2026. DHS will then review the comments and determine whether to issue a final rule, modify the proposal, or take other action. Until a final rule becomes effective, the $103,265 fee is not required.