Proposed $103,265 H-1B Fee: What Employers Should Plan Now
A six-figure H-1B fee would change the hiring math for many employers. But before changing sponsorship plans, it is important to separate what has been proposed from what is actually required. DHS has proposed an additional $103,265 fee for cap-subject H-1B petitions, and a separate proposal would introduce substantial fees for OPT participation.1 Neither proposal, by itself, creates a current payment obligation. Final rules, effective dates, and any applicable court orders will determine what ultimately applies.
Does Your Company Need to Pay the $103,265 Fee Today?
Currently, no. The $103,265 fee is a proposed rule, and a proposal changes nothing until DHS issues a final rule with an effective date — the final terms may also differ from what was proposed. The comment period on the H-1B proposal closed September 24, 2026, and no final rule has been published.2
This proposal is also separate from the $100,000 presidential-proclamation payment announced September 19, 2025, and the two should not be treated as interchangeable. Federal courts have blocked the implementing policies for that payment — most recently, on September 30, 2026, a California federal district court blocked enforcement under both the original proclamation and its extension — so employers filing covered petitions are not currently required to make that payment either, though regular filing fees still apply. The litigation is ongoing, and USCIS has stated DHS intends to collect the payment if the applicable court order is lifted. Notably, the $103,265 proposal expressly allows both amounts to apply to a petition subject to both, so one would not replace the other.
What Would Change for H-1B Sponsorship?
The proposed $103,265 fee would apply to cap-subject petitions, including cases filed under the U.S. advanced-degree exemption, payable at filing in addition to all other applicable fees.2 The fee turns on whether the petition is cap-subject — not on whether the employee is outside the United States — so being in the U.S. on OPT or STEM OPT would not, by itself, avoid the proposed charge.
The proposal excludes cap-exempt filings. Employers should review each employee's cap history and filing route rather than assume that every extension or change of employer would trigger the fee; whether a particular filing is cap-exempt generally depends on whether the employee was previously counted against the cap and how the new petition is filed.
How Would the OPT Fee Proposal Actually Work?
Published October 8, 2026, the OPT proposal would require SEVP-certified schools to pay the applicable fee before recommending a student for OPT.3 It is not simply a new filing fee charged directly to employers or students.
The proposed structure is $70,000 initially and $30,000 for qualifying subsequent OPT recommendations after the initial fee has been paid. Importantly, a STEM extension would not automatically qualify for the lower amount: under the proposed transition rules, a student's first recommendation after the effective date could trigger the $70,000 charge, even if the student previously participated in OPT. Comments on the proposal remain open through November 9, 2026, and both proposals have drawn heavy public response on government comment portals.1
What Should Employers Do Now?
Prepare, don't panic. Understand which employees could be affected, identify the decisions ahead, and avoid making sponsorship commitments based on headlines alone. Build two H-1B budget scenarios — current requirements and a contingency that includes the proposed additional fee where applicable — and identify employees approaching OPT expiration, STEM extension eligibility, or a cap-subject H-1B filing. Coordinate with employees and their schools about potential OPT implications without assuming who would ultimately bear the cost, and review lawful filing options and timing with counsel; filing sooner should not be presented as a guaranteed way to avoid a future fee.
- Build two H-1B budget scenarios: current requirements and a contingency that includes the proposed additional fee where applicable.
- Identify employees approaching OPT expiration, STEM extension eligibility, or a cap-subject H-1B filing.
- Review each employee's cap history and filing route before assuming an extension or employer change would trigger the proposed fee.
- Consider submitting comments on the OPT fee proposal before November 9, 2026.
- Check the latest USCIS guidance and court developments immediately before any H-1B filing.
Whether a six-figure fee ever reaches a given employee turns on specifics — cap history, filing route, OPT stage, and when and in what form a final rule takes effect. A petition that can properly be filed under today's rules may cost far less than the same petition filed after a final rule, and "not required today" does not mean "permanently eliminated," so now is the time to have experienced counsel review each sponsorship plan employee by employee.
The Law Firm of Attorney Peng, PLLC
Information current as of October 20, 2026. Filing requirements should be confirmed against the rules in effect at the time of filing.
2 DHS Notice of Proposed Rulemaking: Additional Fee for Cap-Subject H-1B Petitions — Federal Register
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