DHS Proposes $103,265 Additional Fee for All H-1B Cap-Subject Petitions
On August 25, 2026, the Department of Homeland Security (DHS) is scheduled to publish a proposed rule that would impose an additional $103,265 fee on every H-1B cap-subject petition, in addition to existing H-1B filing fees.
The stated purpose of the proposed fee is to generate revenue to fund costs associated with the broader U.S. immigration system, including numerous programs administered by DHS and other federal agencies. DHS's principal rationale for imposing these costs specifically on H-1B cap-subject employers is its determination that these employers generally have greater resources and are better able to absorb the additional costs than other immigration applicants and petitioners.
The proposal generally would not affect H-1B extensions, change-of-employer petitions ("transfers"), or other H-1B filings that are not subject to the annual cap.
If finalized, the proposed fee would not affect employers until the FY2028 H-1B cap filing season in spring 2027 at the earliest. This is because the FY2027 cap filing season has already concluded, and no new cap-subject petitions can be filed until the next cap cycle.
The proposed rule will almost certainly face significant legal challenges before the FY2028 filing season, which could result in a federal court temporarily or permanently preventing its implementation.
Key Provisions
Would apply to all H-1B cap-subject petitions: If finalized, the fee would apply to petitions counted against both the regular 65,000 H-1B cap and the 20,000 U.S. advanced-degree exemption.
Would not apply to cap-exempt petitions: The rule would not apply to extensions, change-of-employer and other petitions for H-1B workers who have already been counted against the cap, petitions filed by qualifying cap-exempt employers such as institutions of higher education and qualifying nonprofit or governmental research organizations, or treaty-based H-1B1 petitions for eligible Singaporean and Chilean nationals.
Could apply in addition to the Trump Administration's separate $100,000 proclamation payment: Although a federal district court in June vacated the Trump Administration's proclamation implementing the supplemental $100,000 proclamation payment, the government's appeal remains pending. In the proposed rule, the DHS expressly states that, if that payment again becomes enforceable and the proclamation is extended or renewed beyond its September 21, 2026 expiration, employers subject to both requirements would have to pay both the $100,000 proclamation payment and the new $103,265 fee.
Approximately $8.8 billion in annual revenue would be distributed across the federal immigration system: Only 34.2% of the projected revenue would be allocated to USCIS. The remaining funds would support EOIR (33.7%), DOL (13.8%), ICE (11.9%), DOS (5.5%), and CBP (0.9%). The proposed fee would therefore fund immigration courts, labor and immigration enforcement, visa processing, border operations, and other immigration-related activities—not simply the adjudication of H-1B petitions. DHS calculates the $103,265 fee by dividing approximately $8.78 billion in costs by 85,000 anticipated fee-paying cap petitions.
DHS says H-1B employers can absorb the cost: DHS states that it does not believe the $103,265 fee is "significant compared to the petitioner's wage obligation." In reaching that conclusion, DHS cites a median annual H-1B compensation of $133,000 and extrapolates that amount over the general six-year maximum period of H-1B admission. This reasoning is questionable because the employer filing the original cap petition has no six-year employment or wage obligation, and many H-1B workers change employers well before six years.
The timing is notable given USCIS's current premium-processing problems: Employers already pay USCIS substantial additional fees for premium processing in exchange for adjudicative action within a specified period. When USCIS misses that deadline, it is generally required to refund the premium-processing fee while continuing to process the case. USCIS has recently been issuing such refunds in cases where it has failed to meet required premium-processing deadlines. Against that backdrop, it is notable that DHS is simultaneously proposing an extraordinary new six-figure fee on H-1B employers to address government funding needs.
Only a 30-day comment period: DHS is providing only 30 days for public comment on the proposed rule. This is unusually short for a rule of this economic magnitude.
We will provide additional details regarding the proposed rule, its potential legal vulnerabilities, and its impact on H-1B employers following its publication in the Federal Register tomorrow, Tuesday, August 25.