DHS Proposes a $103,265 Fee for Cap-Subject H-1B Petitions
The immediate takeaway for employers: on August 25, 2026, DHS published a proposed rule that would attach a $103,265 fee to every cap-subject H-1B petition, including master's-cap filings.1 This is a proposal, not a final rule — no payment is owed on any petition filed today. Comments are due September 24, 2026.1
Who Would Pay — and Who Would Not
The fee is drawn narrowly around new cap cases. It would apply to:
- Regular-cap H-1B petitions filed after lottery selection; and
- Master's-cap (advanced-degree exemption) petitions.1
It would not apply to cap-exempt employers (universities, nonprofit research organizations, and related entities) or to non-cap filings such as extensions, amendments, and transfers for workers already counted against the cap.1 Your current H-1B workforce is not affected; the cost lands on future lottery hires.
Context: This Formalizes the Blocked $100,000 Payment
The proposal follows the September 19, 2025 presidential proclamation that conditioned certain H-1B petitions for beneficiaries abroad on a $100,000 payment. A Massachusetts federal district court vacated the government's implementation of that requirement in June 2026, the First Circuit denied a stay on July 24, 2026, and USCIS confirmed it is not collecting the payment while the order stands.1 Rulemaking through notice and comment is the government's answer to that litigation — a fee adopted by regulation would rest on a different legal footing than the proclamation. Whether it survives its own inevitable court challenge is a separate question, but employers should not assume this version simply disappears the way the proclamation payment did.
Plan for Both Outcomes
Two points matter now. First, a final rule applies only prospectively — petitions properly filed before its effective date would not owe the fee, so cap cases and cap-exempt strategies you can execute this year proceed under current costs. Second, if finalized on a typical rulemaking timeline, the fee could be in place for the next cap registration cycle, so FY2028 hiring budgets should model both scenarios: standard filing fees only, and standard fees plus roughly $103,000 per selected candidate. That figure changes the economics of lottery-dependent hiring and makes alternatives — cap-exempt placements, L-1 transfers through a Chinese parent or affiliate, O-1, and earlier green-card sponsorship — worth pricing against it now.
How This Relates to the $100,000 Proclamation Payment
This proposal is a separate instrument from the September 2025 proclamation payment of $100,000, and under the proposal's own framing the two would not stack: DHS treats the proclamation payment as expiring by its terms, so the operative figure for a cap petition under a finalized rule would be $103,265 — not $203,265.1 Separately, a district court vacated the proclamation payment in June 2026, and that ruling remains on appeal. Neither development changes what an employer owes on a petition filed today.
- Do not pay or escrow any supplemental H-1B fee now — nothing is owed under a proposed rule.
- Submit comments (directly or through industry groups) by September 24, 2026, quantifying the fee's impact on your hiring.
- Build FY2028 headcount budgets with two scenarios: current fees only, and current fees plus $103,265 per cap-subject petition.
- Identify candidates who could be moved through cap-exempt, L-1, O-1, or green-card routes before any final rule takes effect.
- Confirm which planned filings are extensions or transfers for already-counted workers — those remain outside the proposed fee.
This newsletter is for general informational purposes only and does not constitute legal advice. Attorney advertising. © The Peng Law Group.