DHS Proposes a $100K Fee on H-1B Cap Petitions

The Department of Homeland Security has proposed a new $103,265 fee for H-1B cap-subject petitions.

On August 24, 2026, the Department of Homeland Security announced a proposed rule that would establish a $103,265 fee on every cap-subject H-1B petition, paid at the time of filing and in addition to all other applicable fees. Two months after a federal court struck down the administration's attempt to impose a similar fee by presidential proclamation, DHS is now pursuing the same policy goal through notice-and-comment rulemaking.

What the proposed rule says

The proposed fee applies to all H-1B cap-subject petitions: both the regular 65,000 cap and the additional 20,000 slots reserved for beneficiaries with a master's or higher degree from a U.S. institution. The advanced-degree exemption does not exempt anyone from the fee.

Key mechanics:

• Amount: $103,265 per cap-subject petition.
• When it's paid: At the time the petition is filed, after selection in the lottery, not at registration.
• Stacking: The fee is imposed on top of all existing fees, including the base I-129 fee, the asylum program fee, ACWIA and fraud-prevention fees, and premium processing if elected.

Who would be exempt

The fee would NOT apply to petitions that are not subject to the annual cap. That means the following filings are unaffected:

• Petitions filed by institutions of higher education and their affiliated nonprofits
• Petitions filed by nonprofit research organizations and governmental research organizations
• Extensions, amendments, and transfers for workers who have already been counted against the cap

In practical terms, the fee targets new cap lottery cases filed by private-sector employers, which account for the bulk of H-1B hiring in the tech, healthcare, finance, and professional services sectors.

Why DHS says it needs the fee

DHS frames the fee as cost recovery for the federal government's broader immigration operations, not just H-1B adjudication. The rule cites the costs of benefit adjudications, fraud detection and national security vetting, systems modernization, immigration court operations, consular visa processing, labor standards enforcement, and interagency coordination.

Based on a projected volume of 85,000 cap-subject petitions per year, DHS estimates the fee would generate roughly $8.8 billion annually. Notably, the revenue would be distributed across multiple agencies, including USCIS, the DOJ's immigration courts, the Department of Labor, ICE, the State Department, and CBP, rather than funding USCIS adjudications alone.

How this differs from the $100,000 proclamation fee

In September 2025, a presidential proclamation imposed a $100,000 payment on certain new H-1B petitions for beneficiaries outside the United States. That policy was challenged in court, and on June 8, 2026, a federal district court vacated it, reasoning that Congress speaks explicitly when it authorizes immigration-related fees. On July 24, 2026, the First Circuit declined to reinstate the fee while the government appeals. As of today, the proclamation fee is not in effect, though the appeal remains active.

The new proposal takes a different path. Instead of a proclamation, DHS is using formal rulemaking which is designed to place the fee on firmer legal footing. It also sweeps more broadly in one key respect: it applies to every cap-subject petition, regardless of whether the beneficiary is in the U.S. or abroad. Expect the final rule, if adopted, to face litigation of its own.

What happens next, and when

Nothing changes today. This is a proposed rule, which means it must go through public comment and a final rule before it can take effect.

• August 25, 2026: The proposal publishes in the Federal Register.
• September 24, 2026: The 30-day public comment period closes. Comments can be submitted through regulations.gov.
• After that: DHS must review comments and issue a final rule. Given the timeline, most analysts expect the earliest realistic impact would be the FY 2028 cap season, with registration in March 2027 and petitions filed later that year.

The current FY 2027 cap cycle is not affected.

What employers should consider now

Even though the fee is not final, the direction of policy is clear, and the planning implications are significant:

• Model the cost. For a typical cap case, total government fees would exceed $105,000 per selected beneficiary. Budget owners should understand what that does to next year's hiring plans before registration opens in March 2027.
• Consider commenting. DHS is required to consider substantive public comments, and data-backed submissions from affected employers carry the most weight. The comment window is short — 30 days.
• Map alternatives. Cap-exempt employment, and alternative categories such as O-1, L-1, TN, E-3, and STEM OPT extensions, may play a bigger role in workforce planning if the fee is finalized.
• Watch the litigation. Both the proclamation appeal and any future challenge to this rule could reshape the landscape before FY 2028.

The bottom line

DHS has proposed the largest fee in the history of the H-1B program: a $103,265 charge on every cap-subject petition that would fundamentally change the economics of sponsoring new H-1B talent. It is a proposal, not a final rule, and there are meaningful legal and procedural hurdles ahead. But employers who sponsor H-1B workers should treat the FY 2028 cap season as the planning horizon.

We're closely tracking this rulemaking and will keep you updated as it develops.

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