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

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

Proposed rule would dramatically increase employer costs but is not yet in effect

August 24, 2026

The Department of Homeland Security has proposed a new $103,265 filing fee for every H-1B petition subject to the annual numerical cap, including petitions filed under the U.S. advanced-degree exemption.

The proposed fee would be collected when the employer files the H-1B petition with U.S. Citizenship and Immigration Services. It would be charged in addition to all other applicable H-1B filing fees and required payments.

Most importantly, this is currently only a proposed rule. The $103,265 fee has not yet become a final filing requirement.

Which H-1B petitions would be affected?

The proposal would apply to petitions subject to the annual H-1B cap:

  • The 65,000 visas available under the regular H-1B cap; and
  • The additional 20,000 visas reserved for qualifying beneficiaries who earned a master’s degree or higher from a U.S. institution of higher education.

Because the fee would be collected at the petition stage, it would generally become payable after a beneficiary is selected through the H-1B registration process and the employer proceeds with filing the petition.

The proposal states that the additional fee would not apply to petitions that are exempt from the H-1B cap. This includes qualifying petitions filed by:

  • U.S. institutions of higher education;
  • Certain nonprofit organizations affiliated with institutions of higher education;
  • Nonprofit research organizations; and
  • Governmental research organizations.

Employers should not assume that they qualify for an exemption without examining the organization, proposed position, beneficiary’s prior H-1B history, and the specific basis for cap exemption.

Why is DHS proposing such a large fee?

DHS states that the fee is intended to recover a portion of the federal government’s broader costs for operating the lawful immigration system.

According to the proposal, those costs include:

  • Immigration-benefit adjudication;
  • Fraud detection and national-security screening;
  • Technology and systems modernization;
  • Immigration records and fee-collection operations;
  • Immigration court operations;
  • Consular visa processing;
  • Labor-standards enforcement; and
  • Coordination among federal agencies.

DHS projects approximately 85,000 affected H-1B petitions annually. At $103,265 per petition, the proposal could generate approximately $8.8 billion in annual revenue.

The agency’s proposal therefore goes considerably beyond recovering the direct cost of adjudicating an individual Form I-129 petition. It seeks to allocate broader immigration-system expenses to employers filing cap-subject H-1B petitions.

Potential effect on employers and foreign professionals

If finalized, the proposal would fundamentally change the economics of H-1B sponsorship.

A $103,265 additional fee could make cap-subject sponsorship financially impractical for many startups, small businesses, nonprofit employers that do not qualify for cap exemption, and companies hiring entry-level professionals.

Larger employers would also need to reconsider recruiting budgets, sponsorship policies, repayment agreements, and workforce planning. Employers should remember that immigration and labor rules may restrict whether certain H-1B expenses can be transferred to or recovered from the sponsored employee.

The proposal could also increase competition for cap-exempt positions and encourage employers to examine alternative classifications or immigration strategies. Those alternatives are highly fact-specific and may include O-1, L-1, TN, E-2, cap-exempt H-1B employment, or permanent-residence sponsorship where legally available.

The proposed fee is not yet final

Publication of a notice of proposed rulemaking does not immediately change the law. The proposal must proceed through the federal rulemaking process, which includes a public-comment period and agency review of submitted comments.

Comments are expected to be due 30 days after the proposal’s formal publication in the Federal Register. After reviewing the comments, DHS may issue a final rule, revise the proposal, delay further action, or withdraw it. A final rule could also face legal challenges.

Employers should therefore avoid treating the $103,265 figure as a currently effective USCIS filing fee. At the same time, organizations anticipating participation in a future H-1B cap season should begin evaluating the potential financial impact now.

Employers that rely on H-1B workers should consider:

  1. Identifying positions expected to require cap-subject sponsorship;
  2. Estimating the financial effect of the proposed fee on future hiring;
  3. Determining whether any positions or petitioning entities may qualify for cap exemption;
  4. Reviewing alternative immigration classifications with qualified counsel;
  5. Monitoring the rulemaking process and any related litigation; and
  6. Considering submission of a public comment explaining the proposal’s economic and operational impact.

The proposal is identified as DHS Docket No. USCIS-2026-0298, RIN 1615-AD20, “Fee for Certain H-1B Petitions.”Additional details are available in the Federal Register notice of proposed rulemaking. The reported publication and comment-period information is also summarized by the American Immigration Lawyers Association.

This article is provided for general informational purposes and does not constitute legal advice. Employers and foreign nationals should obtain advice concerning their particular circumstances before making immigration or employment decisions.