DHS Proposes $103,265 Fee for Certain H-1B Petitions

The U.S. Department of Homeland Security (DHS) has proposed a new $103,265 fee for certain H-1B cap-subject petitions filed with U.S. Citizenship and Immigration Services (USCIS). The proposed rule was published in the Federal Register on August 25, 2026, and comments are due by September 24, 2026. The fee is not currently in effect.

What Employers Need to Know

• The Fee Would Apply to Cap-Subject Petitions. The proposed fee would apply to H-1B petitions subject to the annual cap, including petitions filed under the U.S. advanced degree exemption, commonly referred to as the master’s cap.

• Cap-Exempt Petitions Would Generally Not Be Subject to the Fee. Certain petitions involving qualifying institutions of higher education, affiliated nonprofit entities, research organizations, and workers previously counted against the H-1B cap may be exempt.

• The Fee Would Be in Addition to Existing Filing Costs. If finalized, the $103,265 fee would be payable at the petition stage and would be separate from other applicable USCIS filing fees.

• Small Employer Impact. The proposal does not provide a general reduced fee based on employer size. DHS estimates that the rule could have a significant economic impact on many small entities.

What About the Separate $100,000 H-1B Payment?

The proposed $103,265 fee is separate from the $100,000 H-1B payment established under Presidential Proclamation 10973.

However, that payment remains the subject of litigation. In June 2026, a federal district court vacated the government policies implementing the $100,000 payment. The federal government appealed, but the First Circuit denied its request to stay the district court’s ruling while the appeal proceeds. As a result, the $100,000 payment is currently blocked while the litigation continues.

DHS states that the proposed $103,265 fee relies on different statutory authority and is pursuing through the federal notice-and-comment rulemaking process.

Potential Legal Challenges

If finalized, the new fee could also face legal challenges. However, DHS has structured the fee proposal differently and has specifically identified separate legal authority.

Given the amount of the proposed fee and the ongoing litigation involving the H-1B payment, employers should continue monitoring both the rulemaking process and related court developments.

Recommended Next Steps for Employers

Employers who rely on the H-1B program should begin evaluating the potential budgetary impact while recognizing that the proposed fee has not been finalized. Employers currently sponsoring or who anticipate sponsoring H-1B workers should:

• Review H-1B Sponsorship Practices. Identify how frequently the organization relies on cap-subject H-1B petitions and which positions could be affected.

• Evaluate Potential Costs. HR and finance teams should consider the potential impact of a $103,265 fee on future recruiting and immigration budgets.

• Identify Potential Cap Exemptions. Work with immigration counsel to determine whether anticipated H-1B petitions may qualify as cap-exempt.

• Consider Providing Public Comment. Employers and other interested parties may submit comments on the proposed rule through September 24, 2026.

• Monitor Legal and Regulatory Developments. The proposed fee is not currently in effect, and the separate H-1B payment remains subject to on-going litigation.

HR Works will continue to monitor this topic and provide updates as they become available.