DHS Proposes $103,265 Additional Fee for H-1B Cap Petitions: What Employers and Workers Should Know
On August 24, 2026, the Department of Homeland Security announced—and on August 25 published in the Federal Register—a proposed rule that would add a $103,265 fee to every H-1B cap-subject petition. The fee would be due when the petitioning employer files Form I-129 and would be imposed in addition to every other applicable filing fee or payment.
The most important point: this is a proposed rule. The $103,265 fee is not currently in effect.
The proposal at a glance
$103,265 additional fee for each H-1B cap-subject petition filed.
The proposal covers both the regular 65,000 cap and the 20,000 U.S. advanced-degree exemption.
The fee would be paid at the time the cap-subject Form I-129 petition is filed.
It would be added to all other applicable H-1B fees and payments.
Cap-exempt H-1B petitions would not be subject to this proposed fee.
Public comments are due by September 24, 2026, under DHS Docket No. USCIS-2026-0298.
Who would be affected?
An employer generally would encounter the proposed fee when filing an initial cap-subject H-1B petition for a beneficiary with a valid selection. The proposal expressly includes petitions filed under both the regular cap and the U.S. master's cap. It would apply uniformly to cap-subject petitioners, including small businesses and nonprofits that do not independently qualify for a cap exemption.
The petitioning employer would submit the fee with the petition. Employers should not assume that this cost may simply be transferred to the H-1B worker. H-1B wage, reimbursement, and prohibited-fee rules can make cost shifting unlawful or create wage-compliance problems, so any proposed reimbursement arrangement should be reviewed by counsel.
Which H-1B filings generally would not be covered?
Cap-exempt petitions filed by qualifying institutions of higher education or related or affiliated nonprofit entities.
Cap-exempt petitions filed by qualifying nonprofit research organizations or governmental research organizations.
Many extensions, amendments, or changes of employer for workers who have already been counted against the cap, provided the new filing is not itself cap-subject.
Petitions in other nonimmigrant classifications.
Cap-exemption analysis can be technical. The employer, worksite, beneficiary's prior H-1B history, and requested action all may matter.
How would this differ from existing H-1B fees?
Current H-1B filings may already involve the Form I-129 filing fee, the Asylum Program Fee, the ACWIA fee, the Fraud Prevention and Detection Fee, premium processing, and other statutory charges depending on the case. The proposed $103,265 amount would not replace those charges; it would be added to them.
The Federal Register notice also states that this proposed fee would be separate from the $100,000 payment required in certain cases under Presidential Proclamation 10973. If both obligations apply to the same filing, DHS says both would have to be paid.
Why is DHS proposing such a large fee?
DHS projects that charging $103,265 on 85,000 cap-subject petitions would generate approximately $8.78 billion per year. The proposal is not limited to recovering the direct cost of adjudicating one H-1B petition. DHS says the revenue would support immigration-related work across USCIS, CBP, ICE, the immigration courts, the Department of State, and the Department of Labor, including vetting, technology, records, consular processing, labor enforcement, and interagency coordination.
Potential impact on employers and workers
If finalized as written, the proposal could materially change H-1B hiring decisions, especially for startups, small and midsize businesses, private-sector nonprofits, rural employers, and organizations that sponsor several workers. DHS itself estimates that the rule would have a significant economic impact on a substantial number of small entities.
For workers, including F-1 students on OPT or STEM OPT, the proposal does not by itself cancel lawful status, invalidate an existing H-1B approval, or change current employment authorization. Its immediate effect is uncertainty: some employers may reconsider whether they can afford future cap-subject sponsorship.
What H-1B workers and F-1 students should know
Do not assume that a pending or future H-1B case has already become more expensive. The proposal must go through the federal rulemaking process before it can take effect. At the same time, workers should speak with their employers early because the proposal may affect sponsorship budgets and hiring plans if it is finalized.
What happens next?
The public-comment period closes on September 24, 2026. DHS may then revise the proposal, withdraw it, or issue a final rule. A final rule would identify an effective date. Until that process is complete, employers and workers should distinguish the proposal from current law and avoid making irreversible decisions based on headlines alone.
Frequently asked questions
Is the $103,265 H-1B fee in effect now?
No. As of August 31, 2026, it is only a proposed rule. DHS must complete the rulemaking process before any final fee can take effect.
Would the proposed fee apply to the U.S. master's cap?
Yes. The proposal expressly includes cap-subject petitions eligible for the U.S. advanced-degree exemption.
Would it apply to every H-1B extension or transfer?
No. The proposal targets cap-subject petitions. Many extensions, amendments, and changes of employer for workers already counted against the cap are not cap-subject, but the facts of each filing must be reviewed.
Who would pay the fee?
The petitioning employer would submit the fee with the cap-subject petition. Employers should obtain legal advice before attempting to shift any H-1B-related cost to the worker.
Talk with immigration counsel early
Li Law Group, LLC assists employers and foreign professionals with H-1B strategy, cap-exemption analysis, and long-term employment-based immigration planning. Early review can help an employer understand which filings are actually cap-subject and which alternatives may be available.
Official sources
This article provides general information as of August 31, 2026, and is not legal advice. Immigration rules and filing requirements can change, and the analysis of a particular petition depends on its facts.
