On August 24, 2026, DHS announced a proposed rule that would add a new $103,265 fee to all H-1B cap-subject petitions, including those eligible for the advanced degree exemption. The Notice of Proposed Rulemaking was published in the Federal Register on August 25, 2026. This is not the same as the $100,000 fee created by last year’s presidential proclamation, and if finalized, some employers could end up owing both.
What the Proposed Fee Actually Covers
The new fee would be paid at the time of filing, in addition to every other applicable fee, and is intended to fund costs across the entire federal immigration system, not just USCIS. DHS projects the fee would generate approximately $8.8 billion a year based on an assumed 85,000 cap-subject filings, with revenue shared among USCIS, Immigration and Customs Enforcement, Customs and Border Protection, the Executive Office for Immigration Review at the Justice Department, the State Department, and the Department of Labor.
How This Differs From the $100,000 Proclamation Fee
The table below highlights the key differences between the two.
| $100,000 Proclamation Fee | Proposed $103,265 Fee | |
| Legal basis | Presidential Proclamation 10973, under INA sections 212(f) and 215(a) (entry restriction authority) | Proposed rule under INA section 286(m) and (n) (USCIS fee-setting and cost-recovery authority) |
| Current status | Vacated by a federal district court in June 2026; government’s appeal pending at the First Circuit; not currently being collected | Only a proposed rule as of August 24, 2026; not yet in effect |
| Who it applies to | H-1B petitions requiring a beneficiary abroad to obtain a visa through consular processing | All H-1B cap-subject petitions, regardless of where the beneficiary is located |
| If both applied | Would be owed in addition to the proposed fee, if the Proclamation payment is reinstated | Proposed to be owed in addition to the Proclamation payment, per the proposed rule |
Who Would Have to Pay It
The proposed fee would apply only to cap-subject H-1B petitions, including those filed under the 20,000-person advanced degree, or master’s, exemption. It would not apply to cap-exempt petitions, such as those filed by nonprofit research organizations, governmental research organizations, or institutions of higher education. Employers planning to file new cap-subject H-1B petitions for the FY 2027 cap season and beyond would be squarely affected if this rule is finalized as proposed.
What Happens Next
This is a proposed rule, not a final one. Public comments are due by September 24, 2026, and DHS could revise the fee amount or scope based on comments received before any final rule is published. Employers should not assume the $103,265 figure is locked in, but should also not assume the proposal will simply disappear, given DHS’s stated intent to move forward with cost recovery across the immigration system.
Frequently Asked Questions
Is the $103,265 fee in effect right now?
No. This is only a proposed rule. It would need to go through the public comment period, ending September 24, 2026, and a final rule before it could take effect.
Would employers have to pay both this fee and the $100,000 Proclamation fee?
Potentially. The proposed rule states that the new $103,265 fee would be separate from the $100,000 Proclamation payment. However, the Proclamation payment is currently not being collected due to ongoing litigation.
Does this fee apply to cap-exempt H-1B petitions?
No. DHS proposes to exempt petitions filed by nonprofit research organizations, governmental research organizations, and institutions of higher education, consistent with how those petitions are already treated as cap-exempt.
Does the fee apply differently to the regular cap versus the master’s cap exemption?
No. The proposed fee would apply to all H-1B cap-subject petitions, including those filed under the 20,000-person advanced degree exemption.
Can employers respond to this proposed rule?
Yes. DHS is accepting public comments through the Federal eRulemaking Portal at regulations.gov, referencing DHS Docket No. USCIS-2026-0298, through September 24, 2026.
If you or your family members have questions about how this or other immigration and nationality matters may affect you, please do not hesitate to contact the immigration and nationality lawyers at NPZ Law Group. You can reach us by emailing info@visaserve.com or by visiting our website at www.visaserve.com for more information.