DHS Proposes $103,265 Fee for Certain H-1B Petitions
The U.S. Department of Homeland Security through U.S. Citizenship and Immigration Services (USCIS) has proposed a rule that would impose a new $103,265 fee on each H-1B petition subject to the annual H-1B cap. The proposed fee would be payable when the petition is filed and would be charged in addition to all other applicable H-1B filing fees and payments.
What H-1B Petitions Would Be Affected
It is important to note that this is a proposed rule and does not currently apply to H-1B filings. DHS must first accept and review public comments and decide whether to issue a final rule. The public-comment period closes on September 24, 2026. If DHS finalizes the rule, the final rule would need to identify its effective date and implementation procedures.
As proposed, the fee would apply to all cap-subject H-1B petitions, including petitions filed under the 20,000 advanced-degree exemption for beneficiaries who hold a qualifying U.S. master’s degree or higher. Unlike the prior $100,000 fee, this fee is not tied to whether the beneficiary is physically present in the United States or whether the petition requests a change of status or consular processing.
Financial Impact
If implemented as written, the $103,265 fee would be added to existing H-1B filing fees, including the Form I-129 filing fee, the applicable American Competitiveness and Workforce Improvement Act fee, the Fraud Prevention and Detection fee, any applicable additional statutory fee, and optional premium-processing fees. USCIS estimates that the proposal could generate approximately $8.8 billion annually based on an estimated 85,000 cap-subject petitions. DHS states that the revenue would help support federal immigration-system activities, including adjudication, fraud detection and national-security vetting, systems modernization, consular processing, immigration-court operations, labor-standards enforcement, and interagency coordination.
What Employers Can Do Now
Again, this rule is not in effect now and is currently in a public comment period. Employers may want to consider submitting comments before September 24, 2026, particularly regarding the proposed fee’s legal authority, economic impact, implementation timeline, and consequences for small businesses, startups, universities, research organizations, and other affected stakeholders. Comments must be submitted through the Federal eRulemaking Portal under DHS Docket No. USCIS-2026-0298. (http://www.regulations.gov) Follow the website instructions for submitting comments as comments submitted by email or mail will not be accepted as comments on the proposed rule.
These developments underscore the ongoing impact of U.S. immigration policy, with the potential for significant legal and economic ramifications for affected communities. Moore & Van Allen is closely monitoring these developments as they unfold.
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