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

On August 24, 2026, the Department of Homeland Security (DHS) posted a Notice of Proposed Rulemaking (NPRM) for public inspection set to formally publish in the Federal Register on August 25, 2026 (DHS Docket No. USCIS-2026-0298 / FR Doc. 2026-17324).

The proposed rule would establish a substantial new fee of $103,265 required at the time of filing for all new H-1B petitions that are subject to the annual H-1B lottery (H-1B cap), including those filed under the U.S. advanced degree exemption (Master’s cap).

Key Details of the Proposed Rule

• The Proposed Fee: USCIS is proposing an additional fee of $103,265 for cap-subject H-1B petitions.
• Who it Affects: The fee targets all H-1B cap-subject petitions, including both regular cap cases and those eligible for the advanced degree (master’s) exemption that are filed as part of the annual H-1B lottery. This includes both change-of-status and consular notification filings submitted by employers.
• Exemptions: Cap-exempt petitions—such as H-1B extensions, amendments, or filings submitted by cap-exempt organizations (like universities or non-profit research institutions)—will not be subject to the proposed fee.
• Stated Purpose: According to the agency, the revenue generated by this fee is intended to recover a portion of the federal government’s costs associated with administering the broader immigration system beyond the H-1B program across multiple agencies.

Background and Context

This move follows a series of ongoing legal battles regarding a previous $100,000 H-1B fee enacted via a presidential proclamation, which was struck down and blocked by federal courts (including a recent ruling by a Boston appeals court) for being an unauthorized tax. Unlike the previous temporary proclamation, this new measure is being pursued through the formal federal rulemaking process to make it permanent.

Next Steps in the Administrative Process

Publication in the Federal Register on August 25, 2026, opens a 30-day public comment period. Stakeholders, employers, industry groups, and affected individuals will have until late September 2026 to submit formal feedback via regulations.gov.  DHS must review and consider public feedback before issuing a Final Rule. Due to the required regulatory review steps, any final implementation date—along with potential transition rules—remains pending.

Current Status & What Employers Should Do Now

• NO IMMEDIATE ACTION REQUIRED FOR FILINGS: The proposed rule has not been approved and is not currently effective. Employers are not required to pay this fee for any current USCIS petitions or pending filings.

Gibney Recommendations

• Strategic Planning: If implemented in a final rule, the continued validity of that rule would need to be monitored as it is likely to be challenged through legal channels. The proposal for this new fee, as written, would dramatically alter corporate budgeting and talent acquisition strategies for foreign national employees requiring new H-1B cap sponsorship. Employers would be required to evaluate their reliance on the annual H-1B lottery process and review alternative immigration pathways (such as L-1, O-1, TN, E-3, or foreign office assignments) where feasible for talent sourced in the United States.
• Consider Participation in the Public Comment Period: Employers, trade associations, and corporate sponsors potentially impacted by this proposed fee increase may consider submitting public comments highlighting the practical and financial impacts on their workforce.
• Monitor Updates: Gibney’s Immigration Practice Group will closely track the progress of Docket No. USCIS-2026-0298, including public comments, subsequent agency actions, potential impact to immigration programs, and legal challenges that will likely be developing should the regulation become effective after the notice and comment period.

If you have questions regarding how this proposed rule may affect your organization’s hiring plans or existing immigration strategy, please contact your Gibney designated attorney or email us at info@gibney.com.

Houman Afshar

Amy McCoy