DHS Proposes $103,265 Fee for Every H-1B Cap Petition

What Happened

On August 25, 2026, the Department of Homeland Security published a [notice of proposed rulemaking](https://www.uscis.gov/newsroom/news-releases/dhs-proposes-additional-h-1b-fee) in the Federal Register that would impose a $103,265 fee on every H-1B cap-subject petition. The proposed rule appeared on public inspection the day before, on August 24, under RIN 1615-AD20 (DHS Docket No. USCIS-2026-0298, FR Doc. 2026-17324).

This is not an adjustment to existing filing fees. It is a new, standalone charge that would be codified at 8 CFR 106.2(a)(3)(xii) and paid at the time of filing, on top of every other fee an employer already pays — including the base I-129 fee, the ACWIA fee, the fraud prevention and detection fee, the Asylum Program Fee, and premium processing if elected. If finalized as written, it would be the [single largest fee ever imposed on an immigration benefit request](https://www.rnlawgroup.com/dhs-proposes-a-103265-fee-on-every-h-1b-cap-petition/) in the agency's history.

DHS estimates the fee would generate approximately $8.8 billion annually, based on a projected volume of 85,000 cap-subject petitions per year. The agency calculated the figure by dividing total costs of $8,777,488,035 by 85,000 petitions, arriving at $103,264.57, rounded to the nearest $5 increment.

"The proposed H-1B fee is intended to recover the costs incurred across the federal government to adjudicate, vet, and support lawful immigration programs that otherwise must be funded by taxpayers," said USCIS spokesperson Zach Kahler.

Who's Affected

The fee targets cap-subject H-1B petitions — meaning employers filing for workers under the annual 65,000 regular cap and the 20,000 advanced-degree exemption at INA 214(g)(5)(C).

• **Subject to the fee:** All cap-subject H-1B petitions, including those for beneficiaries with U.S. master's or higher degrees.
• **Exempt from the fee:** Cap-exempt petitions filed by institutions of higher education, nonprofit research organizations, governmental research organizations, and related entities. Also exempt: extensions, amendments, transfers for beneficiaries already counted against the cap, and all other I-129 classifications.
• **Not yet in effect:** This is a proposed rule. No employer should add this fee to current filings. The fee would take effect only after the comment period closes, DHS reviews comments, and a final rule is published with an effective date.

Where the $8.8 Billion Goes

In a departure from prior practice, the proposed fee would not simply recover USCIS adjudication costs. Instead, the revenue would be distributed across six agencies in three cabinet departments. [Reddy Neumann Brown PC](https://www.rnlawgroup.com/dhs-proposes-a-103265-fee-on-every-h-1b-cap-petition/) identified the allocation from the rule's supporting tables:

• **USCIS** — 34.2% ($3.0 billion): Adjudication of immigration benefits, fraud detection, vetting, systems modernization.
• **EOIR (DOJ immigration courts)** — 33.7% ($2.96 billion): Funding for 8,400 new positions including immigration judge teams, court space, interpretation, transcription, and FOIA support. These are removal proceedings, not benefit adjudications.
• **DOL** — 13.8% ($1.21 billion): $350 million each for the Wage and Hour Division and the Office of the Solicitor, plus PERM, prevailing wage, H-2A, and H-2B/CW-1 program funding.
• **ICE** — 11.9% ($1.05 billion): $900 million for vetting of aliens pending adjudication, $100 million for vetting of applicants for admission, and $50 million for projected SEVP shortfalls.
• **DOS** — 5.5% ($484 million): Consular vetting systems, fraud programs at 270 consular posts, and refugee program costs including resettlement travel.
• **CBP** — 0.9% ($76.2 million).

What Attorneys Should Know

The legal and regulatory context for this NPRM is dense. Several elements will shape the litigation that is widely expected if DHS finalizes the rule.

**Statutory authority.** DHS cites INA 286(m) and 286(n) (8 U.S.C. § 1356(m) and (n)) as authority to set fees recovering the "full costs" of adjudication and naturalization services, and to reimburse "any appropriation" for those expenses. Critics argue this reading eliminates any ceiling — under DHS's theory, the agency could set the fee at any amount to fund the entire federal immigration apparatus. The operative text of 286(m) authorizes fees for "providing adjudication and naturalization services," and removal proceedings, worksite enforcement, and refugee resettlement are not adjudication of a benefit request.

**Relationship to the $100,000 proclamation fee.** DHS concedes the proposed fee is "close to" the $100,000 payment under Presidential Proclamation 10973, which U.S. District Judge Leo Sorokin [vacated on June 8, 2026](https://haven-five-hazel.vercel.app/blog/federal-court-vacates-100000-h1b-fee-2026) as an unconstitutional tax and an APA violation. The [First Circuit declined to stay](https://haven-five-hazel.vercel.app/blog/first-circuit-denies-stay-100k-h1b-fee-july-2026) that ruling on July 24, 2026. The government's merits appeal remains pending, with briefing expected to conclude in October 2026. The temporary proclamation fee expires in September 2026.

**Internal contradiction.** DHS assumes 85,000 petitions will be filed and paid. It simultaneously claims the fee's benefit is that employers would be less likely to hire H-1B workers — which would reduce filings and collapse the revenue model. Courts have set aside rules for less.

**Timeline to litigation.** A legal challenge cannot be filed until a final rule is issued; the NPRM is not final agency action. Expect complaints within days of a final rule, motions for preliminary injunction, and requests for vacatur under 5 U.S.C. § 706. The [U.S. Chamber of Commerce, Democratic-led states, and a coalition of unions and employers](https://www.usatoday.com/story/news/politics/2026/08/24/trump-worker-visas-immigration/91445839007/) already have pending challenges that could be amended.

**FY 2028 timing.** The critical question is whether a final rule takes effect before the FY 2028 cap registration window, which would ordinarily open in early March 2027. That window is tight but achievable if DHS moves quickly — and there is every indication it intends to.

What Applicants Should Do

No new fee is in effect today. This is a proposed rule that must go through a public comment period, agency review, and final rule publication before it becomes law. Here is what you should do now.

• **If you have a pending H-1B petition:** Current fees apply. Do not add the proposed fee to any filing unless and until a final rule establishes an effective date.
• **If your employer plans to sponsor you for FY 2028:** Ask your employer or immigration attorney whether they are modeling scenarios for both outcomes — the fee taking effect vs. being blocked by litigation.
• **Consider alternative visa categories:** If you may qualify for O-1A (extraordinary ability), EB-2 NIW (National Interest Waiver), TN, E-3, or H-1B1 status, discuss these options with your attorney now rather than waiting until March 2027.
• **Submit a public comment:** You can submit comments on the proposed rule via [regulations.gov](https://www.regulations.gov/) under Docket No. USCIS-2026-0298. Comments should be specific, documented, and data-driven. The deadline is approximately September 24, 2026 (confirm against the published Federal Register version).

How to Submit a Comment

Public comments must be filed through [regulations.gov](https://www.regulations.gov/) under DHS Docket No. USCIS-2026-0298. Emails and letters sent directly to DHS officials do not count as formal comments. USCIS is not accepting mailed comments or digital media.

Effective comments include specific data — for example, the number of positions your organization would not sponsor at $103,265, the cost as a percentage of the worker's salary, or the impact on hiring timelines. Company-level data carries more weight than general objections. Comments also preserve arguments for any future litigation.

DHS must review and respond to significant comments in the preamble of any final rule. Given the scale of this proposal, the agency can expect tens of thousands of comments.