H-1B’s $100,000 Payment Is Blocked Again. Why Should Employers and International Graduates Still Pay Attention?

H-1B’s $100,000 Payment Is Blocked Again. Why Should Employers and International Graduates Still Pay Attention?

For now, employers do not have to make the $100,000 H-1B payment. But a separate proposal could add $103,265 to each cap-subject petition—including petitions for graduates already working in the United States.

Does your company need to pay today? Could employees on OPT be affected? And what should employers plan for ahead of the next cap season?

Here are the key questions.

Q1: Do employers filing H-1B petitions today still have to pay $100,000?

Currently, no.

Two federal courts have blocked the agency policies implementing the payment requirement. Most recently, on September 30, 2026, a California federal district court blocked enforcement of the policies under both the original presidential proclamation and its extension.

Employers filing petitions that would otherwise fall within those policies are therefore not currently required to make the $100,000 payment. Regular filing fees still apply.

Q2: Does that mean the $100,000 payment is gone for good?

No. The litigation is still ongoing.

USCIS states that if the applicable court order is later lifted, DHS intends to collect the payment.

For employers, the practical distinction matters: “not required today” does not mean “permanently eliminated.” Check the latest USCIS guidance and court developments immediately before filing.

Q3: What is the proposed $103,265 fee? Is it simply a replacement for the $100,000 payment?

It is a separate proposal, with a different scope and legal basis.

DHS has proposed an additional $103,265 fee for every H-1B cap-subject petition, including petitions eligible for the U.S. advanced-degree exemption. It would be payable when the petition is filed, on top of other applicable fees.

The proposal also expressly allows both amounts to apply if a petition becomes subject to both requirements. Employers should not assume that one would replace the other.

The $103,265 fee is not currently in effect.

Q4: Could this affect international graduates already working in the U.S. on OPT or STEM OPT?

Yes, under the proposal as written.

The proposed fee turns on whether the petition is cap-subject, rather than whether the employee is outside the United States.

That means an employer sponsoring a graduate already working in the U.S. on OPT or STEM OPT could face the additional fee when filing a cap-subject petition. Being in the United States would not, by itself, avoid the proposed charge.

Q5: Would every H-1B extension or employer transfer carry the new fee?

The proposal does not cover all H-1B petitions.

It targets cap-subject petitions and excludes cap-exempt filings. For extensions and employer changes, the employee’s prior cap history and the specific filing route need to be reviewed to determine whether the petition is exempt from the annual cap.

Q6: Will employers definitely have to pay $103,265 during next spring’s cap season?

That has not been established.

The public comment period closed on September 24, 2026, but closing the comment period does not make the proposal effective. DHS must complete the rulemaking process, and the final requirements may differ.

If a final rule takes effect before a covered petition is filed, the additional fee could apply, depending on the final rule’s terms.

Employers planning to sponsor workers next spring should consider two budgets: one under current fees and another that accounts for the proposed additional cost.

Q7: What should employers do now?

Review your sponsorship plans employee by employee.

Identify:

• Which petitions would be subject to the annual cap.
• Which workers have already been counted against the cap or qualify for another exemption.
• Which cases are eligible for filing now.
• Whether an additional six-figure cost would change hiring or sponsorship decisions.

For cases that are ready to file, review timing with immigration counsel. For next year’s cap cases, discuss sponsorship commitments and budgets early.

A potential six-figure fee can change more than a filing budget—it can change a hiring decision. Understanding each employee’s filing route now will help employers respond promptly as the rules develop.

Law Office of Attorney Peng PLLC

Information current as of October 6, 2026. Filing requirements should be confirmed against the rules and court orders in effect at the time of filing.

This newsletter is for general informational purposes only and does not constitute legal advice. Attorney advertising.