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Department of Homeland Security Proposes New $103,265 Fee for Cap-Subject H-1B Petitions

Rebecca M. Bentley

Rebecca M. Bentley

  716.844.3744

  rbentley@hselaw.com

Yubin (Lucy) Oh

  585.231.1189

  yoh@hselaw.com

On August 25, 2026, Department of Homeland Security (“DHS”) issued a notice of proposed rulemaking (“NPRM”) seeking to establish a $103,265 fee for all cap-subject (i.e., annual lottery-subject) H-1B petitions, including small employers and non-cap-exempt nonprofits. In its NPRM, DHS states that the purpose of this proposed rule is to generate revenue “to recover costs associated with administering the lawful immigration system as a whole.” In applying this fee to the projected 85,000 cap-subject H-1B petitions, DHS anticipates generating annual revenue of approximately $8.8 billion.  

This NPRM follows a recent U.S. District Court order (State of California v. Mullin, 1:25-cv-13829 (D.Mass., June 8 2026)) vacating agency guidance based on Presidential Proclamation effective September 21, 2025, titled Restriction on Entry of Certain Nonimmigrant Workers (“the Proclamation”). The Proclamation had imposed a $100,000 fee payment on certain H-1B petitions, targeting entry of H-1B workers who were outside of the U.S. without an already pending or approved H-1B petition or valid H-1B visa stamp in their passport.  The $100,000 H-1B fee established by the Proclamation is therefore no longer enforceable and is currently not being collected in connection with any H-1B petitions. 

The Trump Administration now seeks to establish a new $103,265 fee in connection with cap-subject H-1B petitions through the NPRM process.  

What do U.S. employers need to know?

  • This proposed rule is not yet enforceable and must first pass through a structured public notice-and-comment process before it can go into effect. Public comments are due on or before September 24, 2026.
  • If this rule goes into effect, it would impact all cap-subject H-1B petitions filed as of Fiscal Year 2028 (i.e., the spring 2027 H-1B lottery process for an October 1, 2027 start date).
  • The proposed $103,265 fee does not apply to cap-exempt H-1B petitions, which can be filed by nonprofit research organizations, governmental research organizations, institutions of higher education, and nonprofits affiliated with institutions of higher education, as well as for H-1B workers who will work primarily at a cap-exempt entity while being employed by a cap-subject entity. 
  • DHS confirms that the proposed fee, once in effect, would be in addition to any other applicable fees or payments, such as established petition filing or visa stamp application fees.
  • The proposed fee would be payable at the time of filing and must be paid by the U.S. employer filing the cap-subject H-1B petition.  

Challenges to the legality of the $103,265 fee are expected, for example, on the basis that the fee exceeds what would be needed to recover the full costs of providing the service.

Please contact a member of the Immigration team if you have any questions about how this NPRM may impact your workforce or recruiting strategies.

Additional Information:

Visit HSE’s Trump Administration Immigration Updates resource page for additional insights and resources.

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