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Dear Clients and Friends,
You may have seen headlines this week about a proposed $103,265 fee for certain H-1B petitions.
Understandably, employers are asking: Does this affect us and how?
For most employers, the immediate answer is no.
The Department of Homeland Security released the proposal on August 24, and it was formally published on August 25. It is a proposed rule, not a final rule, and the new fee is not currently in effect.
If finalized, however, it could dramatically change the cost of sponsoring employees through the annual H-1B cap process.
What Does This Mean?
1. Nothing changes today.
Employers do not need to pay the proposed $103,265 fee now, and the proposal does not change the status or work authorization of current H-1B employees.
The proposal is now going through the federal rulemaking process, including a 30-day public comment period. A final rule would need to be issued before the fee could take effect.
2. The proposal targets the annual H-1B cap process.
The additional fee would apply to H-1B petitions subject to the annual cap, including the U.S. advanced-degree exemption.
It would not apply to every H-1B filing. H-1B extensions and other petitions not subject to the annual cap are outside this proposed fee.
The proposal also does not change the current status, expiration dates, payroll requirements, or I-9 documentation of existing H-1B employees.
3. Significant legal and practical questions remain.
The administration previously imposed a separate $100,000 H-1B payment through presidential action. A federal court vacated the agency guidance implementing that payment in June, and the government’s appeal remains pending.
This proposal relies on a different regulatory approach, but significant legal challenges are likely if it becomes final.
Employers should therefore not assume either that the $103,265 fee will take effect or that it will disappear. We need to follow the rulemaking and any litigation that follows.
What Should Employers Do Now?
For now, the practical steps are straightforward:
- Do not change current H-1B cases or workforce plans based solely on the proposal.
- Continue normal H-1B extensions, transfers, amendments, and other cap-exempt filings as appropriate.
- Identify employees who may need to participate in the spring 2027 H-1B cap process.
- Employers with significant H-1B hiring may want to consider submitting comments during the rulemaking period.
- Continue monitoring developments.
Bottom Line
The proposed $103,265 H-1B fee is significant, but it does not require immediate employer action.
It does not affect the lawful status of current H-1B employees and is not a fee employers must pay today.
The real question is what happens before the next H-1B cap season. If DHS finalizes the rule and it survives legal challenges, it could materially change the cost of hiring new H-1B professionals through the annual cap.
For now, this is a development to monitor, not react to.
We will continue following the rulemaking, litigation, and implementation and provide practical guidance as the picture becomes clearer.
With clarity and partnership,
Giselle
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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