DHS Proposes a New $103,265 Fee on Every Cap-Subject H-1B Petition — Stacked on Top of the Still-Contested $100,000 Proclamation Fee

On August 24, 2026, DHS placed a notice of proposed rulemaking on public inspection — formal Federal Register publication follows August 25, 2026 — that would create a brand-new, standalone fee of $103,265 on every H-1B cap-subject petition, including petitions filed under the 20,000-visa U.S. advanced-degree exemption. This is not the $100,000 fee created by Proclamation 10973 last September, which remains vacated by a federal court and under appeal (see our earlier article). It is a separate charge DHS is trying to establish through ordinary notice-and-comment rulemaking, and if finalized as proposed, it would apply in addition to that fee, not instead of it.

What we know from the proposed rule

• RIN: 1615-AD20
• DHS Docket No.: USCIS-2026-0298
• Federal Register document number: 2026-17324
• Agency / Subagency: Department of Homeland Security (DHS) / U.S. Citizenship and Immigration Services (USCIS)
• Action: Notice of proposed rulemaking (NPRM) — not a final rule; no fee is currently owed under this proposal
• Appeared on public inspection: August 24, 2026
• Scheduled Federal Register publication: August 25, 2026
• Comment period: 30 days after publication, filed under DHS Docket No. USCIS-2026-0298 at regulations.gov
• Proposed new fee: $103,265 per H-1B cap-subject petition, payable at filing, in addition to all other applicable USCIS fees
• Would be codified at: 8 CFR 106.2(a)(3)(xii)

The proposed H-1B fee is intended to recover the costs incurred across the federal government to adjudicate, vet, and support lawful immigration programs that otherwise must be funded by taxpayers.USCIS spokesperson Zach Kahler, quoted in USCIS news release "DHS Proposes Additional H-1B Fee," August 24, 2026

Who this reaches — and who is exempt

The proposed fee attaches to any H-1B petition subject to the annual statutory cap — both the 65,000 regular cap and the 20,000 U.S. advanced-degree exemption — regardless of whether the petition requests a change of status or consular/port-of-entry notification. It would not apply to cap-exempt H-1B petitions: filings by institutions of higher education, their affiliated nonprofit entities, and nonprofit or governmental research organizations remain outside its reach, the same carve-out that already exists for cap-exempt employers generally.

How DHS arrived at $103,265

DHS is not proposing this as a round, symbolic number. The agency's own math: it identified total costs of $8,777,488,035 it says are attributable to administering the lawful immigration system, divided that figure by an assumed 85,000 cap-subject petitions per year — the same number of slots filled every recent cap season — and arrived at $103,264.57, rounded to the nearest $5. DHS projects the fee would generate roughly $8.8 billion annually, allocated across agencies as follows: USCIS 34.2% ($3.0 billion), the Executive Office for Immigration Review (EOIR) 33.7% ($2.96 billion), the Department of Labor 13.8% ($1.21 billion), ICE 11.9% ($1.05 billion), the Department of State 5.5% ($484 million), and CBP 0.9% ($76.2 million).

Why DHS is doing this through rulemaking, not another proclamation

The framing matters. Proclamation 10973's $100,000 charge was imposed by presidential proclamation under INA entry-restriction authority, and a federal court held that approach unconstitutional — treating an entry restriction paired with a payment requirement as an unauthorized tax that only Congress can levy (see our earlier article on that litigation). This new $103,265 charge is structured differently: DHS is proposing it as a USCIS fee under its ordinary fee-setting authority, tied explicitly to cost recovery for adjudication, vetting, and program administration, and run through standard notice-and-comment rulemaking rather than a unilateral proclamation. That framing is very likely a deliberate attempt to sidestep the legal theory that felled the Proclamation 10973 fee — though whether a "cost recovery" fee of this size survives its own legal challenges, if finalized, is untested.

How this stacks with the still-unresolved $100,000 Proclamation fee

These are two separate charges on two separate legal tracks, and DHS's proposal treats them as additive, not alternative. As of this writing, the $100,000 fee from Proclamation 10973 is not being collected — vacated by the District of Massachusetts on June 8, 2026, with the First Circuit declining to stay that ruling on July 24, 2026, while the government's appeal continues (see our earlier article for the full timeline). If that fee is ever reinstated on appeal, and this new $103,265 fee is separately finalized, DHS's own proposal contemplates both applying to the same petition — meaning a single cap-subject H-1B filing could theoretically face more than $200,000 in combined federal fees on top of standard USCIS filing costs.

A related, still-unpublished OPT fee proposal

DHS separately sent a proposed rule concerning Optional Practical Training fees to the Office of Management and Budget on August 20, 2026, and media reports citing unnamed sources have floated a fee as high as $100,000 on OPT applications. As of this writing, that OPT proposal has not cleared OMB review and has not been published with any actual regulatory text — treat any specific dollar figure reported for it as speculation until DHS actually publishes proposed text, the same distinction that applies to every other agenda-stage item we track (see our companion article on the still-unpublished "Practical Training" rule, RIN 1653-AA97). We will cover the OPT fee proposal separately once real text is public.

What happens next, and when this could actually take effect

• Nothing is owed today — this is a proposed rule, not a final one, and USCIS is not collecting this fee on any petition currently being filed.
• The 30-day comment period begins running from the August 25, 2026 Federal Register publication date; DHS must review comments before it can issue a final rule.
• FY 2027's H-1B cap is already closed with no second lottery (see our earlier article), so the earliest cap season this fee could realistically reach is FY 2028, whose registration window is expected to open around March 2027 — assuming DHS finalizes the rule with enough lead time.
• DHS's own regulatory impact analysis flags a significant economic effect on 11,051 small entities — about 76% of the small businesses that filed cap-subject H-1B petitions in FY 2025 — underscoring how concentrated the cost would fall on smaller sponsors rather than only large employers.

What to do now

• Do not add $103,265 to any H-1B petition budget yet — no effective date exists until DHS issues a final rule, and the amount or structure could still change in response to comments.
• If your organization is a frequent H-1B cap-subject filer, consider submitting a comment during the 30-day window — DHS is required to consider substantive comments before finalizing.
• If you are an OPT or STEM OPT holder or F-1 student mapping out a multi-year path toward H-1B sponsorship, factor in that total federal fee exposure on a single H-1B filing could realistically exceed $200,000 if both this proposal and a reinstated Proclamation 10973 fee are ultimately in effect at the same time — even though neither is guaranteed to reach that point.
• Watch for the still-unpublished OPT fee proposal separately; it is not part of this NPRM and has no public text yet.

Bottom line

As of August 24, 2026, DHS has proposed — not finalized — a new $103,265 fee on every H-1B cap-subject petition, built through ordinary rulemaking rather than the presidential-proclamation route a federal court already struck down for the separate $100,000 fee. The two fees are legally distinct and, under DHS's own proposal, would stack rather than replace each other. Nothing changes for filers today: the earliest this could bind a real cap season is FY 2028, and only after a 30-day comment period and a final rule. We will update this article once DHS publishes the official Federal Register text and once the comment period closes.