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The proposed $103,265 H-1B cap fee: what DHS proposed, who would pay it, and where the rulemaking stands

PROPOSED, not in force: on 25 August 2026 DHS proposed a $103,265 fee, payable at filing, on every H-1B cap-subject petition (including advanced-degree-exemption petitions), on top of all other fees and any proclamation payment. The comment period closed on 24 September 2026. As at 10 October 2026 no final rule has been published, so the current fees in 8 CFR 106.2 still apply.

A proposed rule is not a rule. That is the first thing to know about the $103,265 H-1B fee, because headlines about it often read as if it were already law. On 25 August 2026 the Department of Homeland Security published a notice of proposed rulemaking in the Federal Register (91 FR 54817, docket USCIS-2026-0298, RIN 1615-AD20). It proposes a new fee. DHS took public comments until 24 September 2026. A final rule would have to be published before anyone could be required to pay it, and as at 10 October 2026 a Federal Register search for H-1B documents published since 1 September 2026 shows no final rule on this fee.

This page sets out what the proposal says in the words of the document: what the fee is, which petitions it would cover, how DHS reached the figure, what DHS itself says about demand, and how the proposal relates to the separate $100,000 payment under the presidential proclamation. It also says what the document does not say. It does not tell any employer or worker what to do. The current fees are in 8 CFR 106.2 and on the USCIS fee schedule (Form G-1055), which is the page to check before paying anything.

Status: PROPOSED, comment period closed, no final rule yet

The documents involved, in date order:

  • 25 August 2026. Notice of proposed rulemaking, "Fee for Certain H-1B Petitions", 91 FR 54817. Action: "Notice of proposed rulemaking." Written comments were due "on or before September 24, 2026" through the federal rulemaking portal, regulations.gov, under docket USCIS-2026-0298.
  • 10 September 2026. A Federal Register correction (91 FR 57516) replaced Table 13 of the proposal, which reports H-1B petition receipts for fiscal years 2021 to 2025. The proposed fee and the regulatory text were not changed by the correction.
  • 10 October 2026. The comment period has closed. A final rule, a withdrawal or a revised proposal would each be a new Federal Register document. None had been published as at that date.

What "proposed" means in practice: DHS reads the comments, decides whether to go ahead, and if it does it publishes a final rule with its own effective date. The proposed regulatory text does not itself state a start date. The preamble also says that other pending rulemakings could affect the number: "Depending on whether or when the Biometrics Rule is finalized, and if this proposed rule is published as a final rule, any difference in the costs described and quantified by the requirements in the Biometrics Rule may change the final H-1B fee." So the figure of $103,265 is the proposed figure, not a promised one.

Until a final rule is published and takes effect, the H-1B fees that apply are the ones in the fee schedule. Our page on H-1B fees an employer pays lists them with their sources.

What DHS proposed

The summary of the notice says DHS "proposes to establish a $103,265 fee, payable at the time of filing, for all H-1B cap-subject petitions, including those eligible for the advanced degree exemption, which would be imposed in addition to all other applicable fees or payments."

The proposed regulatory text adds a new paragraph to the fee schedule in 8 CFR 106.2(a)(3): "The following additional fee is required for all H-1B cap-subject petitions, including those eligible for the advanced degree exemption under section 214(g)(5)(C) of the Act: $103,265."

Four features of the proposal are worth separating:

  1. It is a stand-alone fee. DHS considered "increasing the existing H-1B petition fee in 8 CFR 106.2(a)(3)(i)" and chose instead to propose a separate provision, saying a standalone fee "is intended to facilitate tracking, allocation, and reporting of the associated revenue."
  2. It is payable at filing. The fee would be paid with the petition, not at registration. The $215 registration fee for the H-1B selection process is a different charge and is not changed by this proposal.
  3. It stacks. The proposal says the fee "would be in addition to any other applicable fees or payments, including any separate payment obligation required under a Presidential Proclamation."
  4. It applies to the cap, not to every H-1B petition. The proposal says it would apply "only to H-1B cap-subject petitions, including those eligible for the advanced degree exemption (not to all H-1B petitions such as cap-exempt filings)."

The notice cites sections 286(j) and (m) of the Immigration and Nationality Act. Section 286(m) authorises fees for adjudication and naturalization services "at a level that will ensure recovery of the full costs of providing all such services". DHS reads that as covering costs across several agencies, and that reading is part of what commenters were invited to address.

Which petitions are cap-subject, and which would be left out

Whether the fee would apply to a petition turns on the H-1B annual cap, so the cap rules matter. USCIS's cap-season page says: "Congress set the current annual regular cap for the H-1B category at 65,000 (commonly known as the 'regular cap')." It adds that "An additional 20,000 petitions filed on behalf of beneficiaries who have earned a master's degree or higher from a U.S. institution of higher education are exempt from the cap." The proposal counts both groups as cap-subject for fee purposes: its footnote says the annual numerical allocations are 85,000, made up of 65,000 under section 214(g)(1)(A) and 20,000 under section 214(g)(5)(C).

Petitions that are not subject to the cap fall outside the proposal. USCIS's page says that "petitions filed by U.S. institutions of higher education are cap exempt". DHS explains why it proposes to leave cap-exempt petitions out: many of those workers are employed by nonprofit research organisations, governmental research organisations and educational institutions, and DHS says exempting them is consistent with how the Asylum Program Fee treats such petitioners (8 CFR 106.1(f)(2) and 106.2(c)(13)(i)).

Within the cap-subject group, the proposal makes no distinction by size of employer. In its cost analysis DHS says the fee "would be applied uniformly to all H-1B cap-subject petitioners irrespective of their size and nonprofit status and is in addition to the current filing and statutory fees." That is a notable contrast with the existing fee schedule, which gives small employers and nonprofits lower rates for several charges.

Two other points follow from the text. First, the fee is tied to the petition being cap-subject, so whether a given petition is cap-subject is decided under the cap and exemption rules in the statute and 8 CFR 214.2(h)(8), not by this proposal. Second, this page cannot say whether any particular filing, such as an extension, an amendment or a change of employer, would count as cap-subject. That is a question for the employer's lawyer.

How DHS arrived at $103,265

The figure is arithmetic, and DHS shows it. A footnote explains that the fee is "calculated by dividing the total costs to be recovered of $8,777,488,035 by the projected fee paying volume of 85,000 to be $103,264.57." DHS then rounds the fee "to the nearest $5 increment consistent with how it has in other IEFA fee rules for a final fee of $103,265." (IEFA is the Immigration Examinations Fee Account, the account into which most USCIS fees are paid.)

The costs to be recovered are not only USCIS's. The notice says the fee is "designed, consistent with section 286(m) of the Immigration and Nationality Act (INA), 8 U.S.C. 1356(m), to recover a portion of the full costs" of immigration adjudication and naturalization services incurred by USCIS, Customs and Border Protection, Immigration and Customs Enforcement, the Executive Office for Immigration Review in the Department of Justice, the State Department and the Labor Department. DHS spells out the consequence: it "recognizes that H-1B cap-subject petitioners may object to paying a fee that recovers costs far beyond the direct adjudication cost of their individual petition." It argues that the USCIS fee schedule "has long reflected the need to recover costs associated with administering the lawful immigration system as a whole".

The volume assumption matters to the figure. DHS "assumes an annual filing volume of 85,000 H-1B cap-subject petitions, all of which would be subject to the proposed H-1B fee in addition to all other required fees." Multiplying out gives "a total revenue projection of approximately $8.8 billion." Table 13, as corrected on 10 September 2026, reports cap-subject H-1B receipts of 79,903 in fiscal year 2021, 111,269 in 2022, 74,759 in 2023, 111,108 in 2024 and 106,711 in 2025, a five-year average of 96,750. DHS says it expects "a reduction from the 5-year average of 96,750" under the proposal, to 85,000.

Because the fee is the total cost divided by the assumed volume, a different assumed volume or a different cost base would produce a different fee. The notice itself says the Biometrics Rule could change it. A reader comparing figures from different sources should check whether they come from the proposed fee notice or from commentary about it.

What DHS says about demand and cost to petitioners

The proposal includes DHS's own analysis of how petitioners might respond, and it is worth reading as DHS's position rather than as a forecast.

  • Willingness to pay. DHS cites an academic working paper (Borjas, NBER Working Paper 34793, February 2026) that "suggests that H-1B petitioners would be willing to pay a one-time fee ranging from $100,000 to $200,000 to hire a foreign-born worker." The same passage reports the paper's estimate that "employers pay H-1B workers 16.1 percent less than the expected wages of a comparable native worker."
  • Elasticity. DHS estimated a model on fiscal years 2021 to 2025 and says: "we concluded that fee elasticity of demand for I-129 H-1B receipts is inelastic." It says USCIS "has yet to observe the full current fiscal year behavior of H-1B petitioners".
  • Cost to petitioners. DHS treats the fee as a real cost, not a transfer: it "would result in real costs to cap-subject H-1B petitioners that fund new activities supporting administration of the lawful immigration system across multiple agencies." It puts the "additional $8,777,525,000 in aggregate annual costs to cap-subject H-1B petitioners".

These are the proposal's assumptions. Commenters were free to challenge them, and the comment period is closed. Whether a final rule keeps the same assumptions is not known from the notice.

How the proposal relates to the $100,000 payment and to existing fees

The $100,000 payment. The proclamation payment and the proposed fee have different legal bases. The proclamation payment is a condition attached to a restriction on entry under sections 212(f) and 215(a) of the INA. The proposed fee would be a fee under the user-fee authority in section 286 of the INA. The notice says: "to the extent a petitioner is subject both to a proclamation-required payment and to the additional H-1B fee proposed in this rule, the petitioner would be required to pay both amounts." In a footnote DHS added that the proclamation, "unless extended, will expire before the fee proposed in this rule will take effect." The proclamation was then extended on 23 September 2026 by Proclamation 11069. USCIS's fee page also says that a federal court vacated the agency guidance implementing the proclamation payment and that DHS is complying with that order for now. Our page on the $100,000 H-1B payment sets out the sequence.

Existing fees. The fee schedule today already contains, for a cap-subject petition, a $215 registration fee for each registration, the $780 I-129 petition fee ($460 for a small employer or nonprofit), the Asylum Program Fee, the ACWIA fee, the fraud prevention and detection fee and, for some employers, the 9-11 fee. The proposal would sit on top of those. The list is on our page on H-1B fees an employer pays.

The selection rule. The proposal does not change how registrations are selected. That is governed by the weighted selection rule, explained on our page on the H-1B weighted lottery. The fee would apply only after a registration has been selected and a cap-subject petition is filed.

What to watch, and where to read the original

Four things would change what this page says:

  1. A final rule. It would appear in the Federal Register with an effective date and, usually, a response to the comments. Until then the figure is a proposal.
  2. A change to the figure. DHS has said the number can move if its cost base or the Biometrics Rule changes.
  3. A court challenge. The proposal itself is not a rule that can be challenged in the way a final rule can. Litigation over a final rule, if any, would be reported in the Federal Register or on the USCIS pages and is not described here.
  4. A new proclamation or a change in the proclamation payment. The relationship between the two charges depends on whether the proclamation payment is in force when a petition is filed.

The primary documents are the Federal Register notice 2026-17324 (91 FR 54817, 25 August 2026), the correction C1-2026-17324 (91 FR 57516, 10 September 2026) and the docket on regulations.gov. The USCIS fee schedule, Form G-1055, is the place to check what a petition must include on the day it is filed.

A petition is the employer's legal filing. Questions about whether a petition would be cap-subject, which fees it carries and how the proposal might interact with the proclamation are for an attorney or a DOJ-accredited representative.

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Questions people ask

Is the $103,265 H-1B fee in effect?

No. It is a PROPOSED rule published on 25 August 2026 (91 FR 54817). The comment period closed on 24 September 2026. A final rule would have to be published, with its own effective date, before the fee could be required. As at 10 October 2026 no final rule has been published.

Which H-1B petitions would the $103,265 fee apply to?

The proposal would apply to "all H-1B cap-subject petitions, including those eligible for the advanced degree exemption." DHS says it would not apply to "cap-exempt filings", such as petitions filed by U.S. institutions of higher education.

Is the proposed fee in addition to the $100,000 payment?

The proposal says it would be "in addition to any other applicable fees or payments, including any separate payment obligation required under a Presidential Proclamation", and that a petitioner subject to both "would be required to pay both amounts." The $100,000 payment's own status is described on our page about it, including a June 2026 court order on the agency guidance.

How did DHS calculate $103,265?

By dividing "the total costs to be recovered of $8,777,488,035 by the projected fee paying volume of 85,000", which gives $103,264.57, and rounding to the nearest $5.

Can the proposed fee still change?

Yes. The notice says a different outcome on the separate Biometrics Rule "may change the final H-1B fee." Any final rule would state the final amount.

Would small employers or nonprofits pay less?

Not under the proposal as written. DHS says the fee "would be applied uniformly to all H-1B cap-subject petitioners irrespective of their size and nonprofit status." Cap-exempt petitions, which include many filed by universities and some nonprofit research organisations, would be outside it.

Sources

Last checked 2026-10-10.

Related guides

  • The $100,000 H-1B payment: what the proclamations say, and what USCIS says about the court order — Proclamation 10973 (September 2025) restricts entry of H-1B workers unless a $100,000 payment accompanies the petition, and Proclamation 11069 (September 2026) extends it for 12 more months. USCIS's fee page says that on 8 June 2026 a federal court vacated the agency guidance implementing the payment, that DHS is complying while it considers next steps, and that DHS still plans to collect the payment if the order is lifted. This page reports those documents as at 10 October 2026 and does not say how any individual petition is treated.
  • H-1B fees in 2026: every charge an employer pays, with the rule behind each one — For a new cap-subject H-1B, the fee schedule as at 10 October 2026 has a $215 registration fee, a $780 petition fee ($460 for a small employer or nonprofit), a $600 Asylum Program Fee ($300 or none for the same groups), a $1,500 ACWIA fee ($750 for 25 or fewer employees), a $500 fraud fee, and for some employers a $4,000 9-11 fee, plus optional premium processing at $2,965. The $100,000 payment and a PROPOSED $103,265 fee are separate items, covered on their own pages.
  • The H-1B weighted lottery: how wage level sets the number of entries, and the rules that tie the registration to the petition — Since the fiscal year 2027 cap season, when USCIS has more H-1B registrations than it needs it enters each beneficiary in the draw once, twice, three or four times depending on the OEWS wage level (I to IV) that the offered wage equals or exceeds (8 CFR 214.2(h)(8)(iii)(A)(4)). The registration must be accurate, the later petition must match it, and the fee is $215 per registration. This page explains the rule; it does not predict anyone's chances.
  • USCIS fees, October 2026: every main form — As at 9 October 2026 the paper fee is $675 for the I-130, $1,440 for an adult I-485, $520 for a standard I-765, $750 for the I-751 and $760 for the N-400. Four fees rise on 16 October 2026, EB-5 fees change on 30 November 2026, and several changes are only proposed.
  • USCIS premium processing fees from 1 March 2026 — Since 1 March 2026 the premium processing fee on Form I-907 is $1,780, $2,075 or $2,965 depending on the category (8 CFR 106.4(c)). USCIS must act within 15, 30 or 45 business days or refund the fee, except where it opens a fraud investigation. The fee cannot be waived and must be paid in addition to the filing fee.
  • H-1B request for evidence: what the regulations say about specialty occupation, wages, worksites and the response deadline — An H-1B RFE gives at most twelve weeks to respond and no extensions (8 CFR 103.2(b)(8)(iv)). The regulations behind the usual questions are the specialty occupation definition and four criteria in 8 CFR 214.2(h)(4), the bona fide position and third-party rules, and the required-wage rule in 20 CFR 655.731. This page sets them out without telling anyone how to respond.
  • USCIS and immigration court fee changes, October–November 2026: what moves when — Fees change on three dates this autumn: EOIR court fees on 1 October 2026 (appeal to the BIA $1,060), four USCIS H.R. 1 fees on 16 October 2026 (annual asylum fee $105, parole fee $1,050, initial asylum/parole/TPS work permit $570, TPS $520) and EB-5 fees on 30 November 2026. The N-400, I-130, I-485 and I-751 fees are not among them. Several higher fees are only PROPOSED.