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The Department of Homeland Security (DHS) is expected to publish a proposed rule on Aug. 25, 2026, in the Federal Register that would impose a new $103,265 fee on all cap subject H-1B visa petitions. This new proposal would be in addition to existing H-1B filing fees. Employers who rely on the H-1B program to hire foreign workers in specialty occupations could be significantly impacted if the proposal is finalized.
How This Differs from Previous $100,000 Fee
A $100,000 fee was previously imposed through executive order in 2025. That fee applied only to H-1B workers seeking H-1B status through consular processing abroad. It did not apply to individuals who changed to H-1B status while already in the United States. A federal court struck down that fee in June 2026, and the court decision is being appealed.
The new proposed rule is legally distinct from that executive order. DHS is pursuing a fee structure through formal rulemaking, which relies on different legal authority.
Who Would Be Affected?
The new proposed fee would apply to H-1B petitions subject to the annual statutory cap, including petitions filed under both the regular cap (currently set at 65,000 visas) and the advanced-degree exemption (an additional 20,000 visas). It would be assessed in addition to existing H-1B filing fees and would apply regardless of whether the beneficiary is outside the United States or is already in the United States and seeking a change of status, such as an F-1 student changing to H-1B status.
The proposed fee would not apply to cap-exempt H-1B petitions, filed by or on behalf of employers not subject to the annual numerical cap. Employers that commonly qualify for cap-exempt H-1B filings include:
- Universities and institutions of higher education
- Nonprofit research organizations
- Government research entities
- Nonprofit entities affiliated with or related to institutions of higher education
These employers would continue to file cap-exempt H-1B petitions without the additional proposed fee.
What Is the Fee’s Purpose?
DHS states that the proposed fee is intended to help recover the costs of administering the lawful immigration system. The revenue would cover costs including adjudication of immigration benefits, fraud detection and national security vetting, systems modernization, records and fee collection operations, immigration court operations, consular visa processing, labor standards enforcement, and interagency coordination. DHS estimates these activities cost approximately $8.8 billion annually.
What It Would Mean for Employers
If finalized as proposed, the new rule would substantially increase the cost of sponsoring cap-subject H-1B workers by adding a $103,265 fee to each covered petition. Employers that rely on the H-1B program may need to account for higher immigration costs in their budgets and reassess how the added expense could affect hiring plans, sponsorship decisions, and recruitment for roles requiring specialized skills or advanced degrees.
What Happens Next?
This is a proposed rule, which means the fee is not yet in effect. Before DHS can finalize the rule, it must provide the public with a 30-day comment period following publication in the Federal Register. During this comment period, employers, industry groups, and other interested parties may submit feedback on the proposal.
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