DHS Files $103,265 H-1B Fee Rule: What Comes Next
On August 25, DHS officially registered its proposed $103,265 H-1B fee for cap-subject petitions. The 30-day comment period is now open—a critical window for stakeholders to weigh in before finalization.
The Filing: What Happened on August 25
DHS is proposing a $103,265 fee for every new fiscal year 2028 H-1B cap-subject petition on top of all existing fees. On August 25, 2026, DHS is publishing a Notice of Proposed Rulemaking in the Federal Register that would establish a $103,265 fee on every H-1B cap-subject petition. This marks a formal shift from announcement to official rulemaking—the proposal now sits in the Federal Register and the comment window has begun.
This is not a finalized rule. Nothing takes effect on publication. The filing triggers a 30-day public comment period, and DHS must review all feedback before issuing any final rule. But the filing itself is a significant milestone: it locks in the timeline and creates a legal record that stakeholders can challenge.
Who Pays, Who Doesn't
The fee would apply to all cap-subject employers, regardless of size. This includes both the regular 65,000-cap visa lottery and petitions filed under the 20,000-visa advanced degree exemption for holders of U.S. master's degrees or higher.
There is a carve-out. The fee would not apply to cap-exempt petitions (i.e., those filed by universities, nonprofit research organizations, and government research organizations) or to petitions to extend or amend existing H-1B status or to change an existing H-1B to a different employer. Employers at educational institutions and qualifying nonprofits would not owe this new fee.
The impact on small businesses is severe. DHS's 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).
The Money: Where It Goes
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). This is framed as "cost recovery"—but the revenue is distributed across multiple agencies beyond just USCIS.
Timeline: Your Comment Window
Written comments must be submitted on or before September 24, 2026. The electronic Federal Docket Management System will accept comments before midnight eastern time at the end of that day. After the comment period closes, DHS reviews all feedback and then decides whether to issue a final rule. That process typically takes months.
File your comments through regulations.gov under DHS Docket No. USCIS-2026-0298. Email and letter submissions do not count.
Legal Headwinds Ahead
Significant legal challenges to the rule are anticipated. If implemented, the fee would represent one of the most significant increases in employment-based immigration filing costs in U.S. history. This is also not DHS's first attempt: A federal court in Massachusetts struck down the fee as an unlawful tax and vacated its implementing guidance on June 8, 2026. That was the $100,000 fee under Presidential Proclamation. The new proposed rule is legally distinct from that executive order. DHS is pursuing a fee structure through formal rulemaking, which relies on different legal authority.What Employers Should Do Now
Comment before September 24 if the fee would materially affect your hiring plans. Document any decisions you make to reduce H-1B sponsorship in anticipation of higher costs—evidence matters if litigation follows. Begin evaluating alternative visa pathways (O-1A, NIW, TN, E-3) for roles you might not sponsor under the new fee structure. Most importantly, do not assume this fee will take effect. Legal challenges and political pressure can shift outcomes. Plan for multiple scenarios.
This is a real filing with a real deadline. Watch regulations.gov for the comment period close date and the docket number. Your input during this 30-day window is your best chance to influence how—or whether—this rule becomes law.