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DHS Proposes a $103,265 Fee on Cap-Subject H-1B Petitions

August 25, 2026

In 2025, the Department of Homeland Security instituted a $100k fee on certain H-1B petitions, causing confusion and concern among current and prospective H-1B nonimmigrants and their employers. In June 2025, a federal judge struck down the fee, calling it an unlawful tax (though he stayed his own ruling pending appeal). Now, DHS is back with a proposed rule that would add a new $103,265 fee to every H-1B cap-subject petition (including advanced-degree exemption cases). This is not a final rule, and is likely to be challenged in court.

New fee would only apply to cap-subject H-1B petitions

H-1B petitions that are not cap-subject – including H-1B extensions for those already having gone through the cap, plus cap-exempt filings submitted by non-profits, colleges and universities, and certain non-profits – would not have to pay the additional fee.

Not a final rule

This is a proposed rule, not a final one. It will go through a 30-day comment period and other layers of review before a final rule is issued with its own effective date. Nothing changes for filings today.

Expect litigation

The prior, separate $100,000 H-1B fee was already successfully challenged, with its implementing guidance vacated by a federal district court (though that decision was stayed, and is now on appeal). Similar challenges are very likely for this new fee as well. We’re tracking the comment period and any litigation, and will post updates as they develop.

TAGS: H-1B, H-1B Cap, USCIS Fees