DHS Proposes Permanent $100,000 Fee for H-1B Cap-Subject Petitions

• The Department of Homeland Security has proposed a new $103,265 filing fee for all H-1B cap-subject petitions. 

Proposes Permanent $100,000 Fee for H-1B Cap-Subject Petitions 

The U.S. Department of Homeland Security (DHS) has published a Notice of Proposed Rulemaking (NPRM) that would establish a new $103,265 filing fee for all H-1B cap-subject petitions, including petitions eligible for the advanced degree exemption. The proposed fee would be imposed in addition to all existing H-1B filing fees and would be payable at the time of filing

According to DHS, the proposed fee is intended to generate revenue to support the costs of administering the U.S. legal immigration system across multiple federal agencies, including U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), the Executive Office for Immigration Review (EOIR), the Department of State (DOS) and the Department of Labor (DOL).  

Who Would Be Impacted? 

If finalized, the rule would apply to: 

• All H-1B cap-subject petitions 
• Petitions filed under the annual 65,000 H-1B cap 
• Petitions filed under the 20,000 advanced degree exemption 

The proposal would not apply to cap-exempt H-1B petitions, including many petitions filed by higher education institutions, affiliated nonprofit entities, nonprofit research organizations and governmental research organizations.

Proposed Fee Separate from Ongoing $100,000 H-1B Litigation 

DHS states that the proposed $103,265 fee is based on a separate statutory authority from the administration’s 2025 presidential proclamation that imposed a $100,000 payment requirement on certain H-1B petitions. That earlier policy remains the subject of ongoing litigation.  

Notably, DHS indicates that if the proclamation ultimately survives legal challenges or is extended, employers could potentially be required to pay both amounts. 

“To the extent a petitioner is subject both to a proclamation-required payment and to the additional H-1B fee proposed in this rule, the petitioner would be required to pay both amounts.”

Why Is DHS Proposing the Fee? 

According to the NPRM, DHS determined that current immigration fees do not generate sufficient revenue to fund the full cost of administering the lawful immigration system. The agency considered increasing fees across all immigration benefit requests but instead decided to allocate those costs specifically to H-1B cap-subject employers.  

How was the $103,265 Fee Calculated? 

DHS calculated the proposed fee by dividing approximately $8.78 billion in annual costs by an estimated 85,000 annual H-1B cap-subject petitions, resulting in a fee of $103,265 per petition.

The agency estimates the fee would generate approximately $8.8 billion annually if all available cap numbers are utilized.

Where Would the Revenue Go? 

Under the proposal, DHS would distribute revenue generated by the fee among several federal agencies involved in immigration administration: 

DHS states that these agencies incur costs related to immigration adjudications, fraud prevention, screening, vetting, immigration court operations, labor condition application processing and other functions supporting the legal immigration system.  

Potential Impact on Employers 

The proposal would represent one of the most significant fee increases in the history of the H-1B program. Historically, employers generally paid several thousand dollars in filing fees depending on company size and filing circumstances. The new fee would add more than $103,000 to the cost of sponsoring a cap-subject H-1B worker.  

DHS acknowledges that the proposal could substantially affect employers, particularly small businesses. According to the agency’s analysis, approximately 11,051 small entities could experience a significant economic impact if the rule is finalized.

Attorney Insight

Peter Bade, Managing Attorney at Corporate Immigration Partners, states:

Given the scope of the proposal and the ongoing litigation surrounding the administration’s previous H-1B fee policy, we expect this rule to face significant legal challenges if DHS moves forward with a final regulation.

It’s also important to remember that this is only a proposed rule.

DHS must first complete the public comment process and determine whether to issue a final regulation, and no implementation date has been announced.

Importantly, the proposed rule is directed at future H-1B cap-subject filings and would not affect petitions that have already been approved. No changes would take effect until DHS ultimately finalizes the rule.

As a result, employers should continue working closely with their immigration counsel and avoid making workforce decisions based on the proposal alone.

What Happens Next? 

The proposed rule is scheduled for publication in the Federal Register on August 25, 2026. DHS will accept public comments for 30 days following publication before determining whether to issue a final rule.

Employers that rely on the H-1B program should closely monitor developments, as the proposal could significantly affect future workforce planning, recruitment strategies and immigration sponsorship costs. 

 About Envoy Global

At Envoy Global, we closely monitor U.S. immigration policy changes affecting employers and foreign talent. Our team will continue tracking developments related to the proposed H-1B fee rule, litigation updates and any implementation guidance issued by DHS and USCIS. 

Contact Envoy Global to learn how your organization can prepare for evolving H-1B visa requirements and broader employment-based immigration changes.