DHS's $103,265 H-1B Fee Proposal: What You Need to Know
DHS published a formal rulemaking proposal for a $103,265 fee on all cap-subject H-1B petitions, including master's degree exempt visas. Comment deadline is September 24, 2026.
The Proposal: What's Changing
On August 25, 2026, the Department of Homeland Security (DHS) published a proposed rule in the Federal Register that would impose a new $103,265 H-1B fee on every H-1B cap-subject petition. This fee would be imposed in addition to all other applicable fees or payments.
This is not a tweak to existing filing costs—it's a new standalone charge. It would be more than one hundred times the current base filing fee for an H-1B petition, and if finalized as written, would be the single largest fee ever imposed on an immigration benefit request in the history of the agency.
The fee would apply to petitions selected in the annual H-1B lottery, including beneficiaries counted against the 20,000 U.S. master's degree exemption. Cap-exempt petitions filed by institutions of higher education, affiliated nonprofits, and nonprofit or governmental research organizations would not be subject to this fee.
Key Timeline and How to Comment
Written comments must be submitted on or before September 24, 2026. Comments must be filed through regulations.gov under DHS Docket No. USCIS-2026-0298. Emails and letters to DHS officials do not count as comments. USCIS is not accepting mailed comments or digital media.
This is a Notice of Proposed Rulemaking, meaning the proposal is not yet final and will not take effect upon publication. DHS must first accept and review public comments and publish a final rule with an implementation date.
The Financial Impact
DHS says it expects the fee to apply to approximately 85,000 cap-subject petitions annually, which would generate roughly $8.8 billion each year. DHS proposes allocating the projected $8.8 billion as follows: USCIS 34.2% ($3.0 billion), EOIR 33.7% ($2.96 billion), DOL 13.8% ($1.21 billion), ICE 11.9% ($1.05 billion), DOS 5.5% ($484 million), and CBP 0.9% ($76.2 million).
DHS concedes a significant impact on small employers. Its own analysis estimates the rule would have a significant economic impact on 11,051 small entities (76% of the small entities that filed cap-subject petitions in FY 2025).
Distinct from the Earlier Executive Order Fee
This rulemaking is separate from the court-struck fee from 2025. This is a separate and entirely distinct development from the $100,000 fee imposed under Presidential Proclamation 10973. DHS is pursuing a fee structure through formal rulemaking, which relies on different legal authority.
A federal district court vacated agency guidance implementing the $100,000 payment in June 2026. The federal government appealed the decision, and that appeal remains pending. The proclamation is scheduled to expire on Sept. 21, 2026, unless it is extended or renewed.
If both fees coexist—a narrow scenario—employers could face stacking liability. If the proclamation payment were enforceable and both requirements applied at the same time, an employer could be required to pay both amounts, in addition to other applicable H-1B fees.
What Employers Should Do Now
The 30-day comment window closes September 24. A 30-day window on an economically significant rule with an $8.8 billion annual price tag is aggressive. Executive Order 12866 contemplates 60 days as the norm for significant rules. That compression is itself a live procedural issue, and it is worth preserving in a comment.
Employers sponsoring H-1B workers should monitor this rulemaking closely. The fee's structure, scope, and effective date could shift based on public feedback and DHS's final decision. Legal challenges are anticipated once any final rule is published.