Last Updated: September 22, 2026
Highlights
- Through a Notice of Proposed Rulemaking (NPRM), the Department of Homeland Security (DHS) is proposing an unprecedented $103,265 fee for all H-1B cap-subject petitions filed through the annual lottery.
- The proposed fee would apply regardless of employer size or nonprofit status, while cap-exempt H-1B petitions would not be subject to the new fee.
- USCIS will accept public comments for 30 days after the rule is formally published on August 25. The rule would not take effect until the agency considers public comments and finalizes the proposal into a final rule.
- Court challenges to a final rule are likely.
Current Status
The Department of Homeland Security (DHS) has proposed an unprecedented additional $103,265 fee for all H-1B cap-subject petitions filed through the annual lottery. This fee applies uniformly to all cap-subject petitioners, regardless of employer size or nonprofit status, and is in addition to current filing and statutory fees. In justifying the amount, DHS notes that H-1B cap subject petitions are generally submitted by petitioners who have a greater ability to pay than all other immigration fee payers.
Cap-exempt H-1B petitions, including those filed by nonprofit research organizations, governmental research organizations, and educational institutions, would be exempt from the proposed fee.
A Closer Look
The proposed fee would apply in addition to any existing H-1B petition fees. This includes the currently vacated $100,000 H-1B presidential proclamation fee, where applicable, if that fee were to be reinstated. The $100,000 presidential proclamation H-1B fee was vacated pursuant to an ongoing lawsuit, so the government is not currently permitted to collect it. For more information, see our trending topic.
Additionally, based on the NPRM’s current language, this proposed fee would apply to H-1B cap-subject petitions filed following selection in next year’s H-1B lottery, as those would be the next round of cases subject to the annual cap. By contrast, petitions for beneficiaries who have already been counted against the cap (including change-of-employer petitions, extensions, amendments, and similar filings) would not appear to be subject to the proposed fee under the NPRM as currently drafted.
According to DHS, the proposed rule aims to fund cross-agency immigration costs, protect the wages and job opportunities of U.S. workers, and discourage the hiring of H-1B nonimmigrant workers absent legitimate need and no other alternative for obtaining such specialized skills.
Applying this fee to a projected annual volume of 85,000 H-1B cap-subject receipts is estimated to yield approximately $8.8 billion in projected annual revenue over a 10-year period (FY 2027-2036).
What’s next for the fee proposal
The notice of proposed rulemaking is scheduled for official publication on August 25, 2026, at which point a 30-day public comment period will begin. The unpublished notice is currently available for review here.
The proposal is not yet final, and legal challenges are widely expected if the rule moves forward.
We will continue monitoring developments and provide updates on our Trending Topics page as the situation unfolds.
Brown Immigration Law's Comment on Fee for Certain H–1B Petitions
Instructions for Submitting Comments on Proposed Rulemaking
The rulemaking process provides an opportunity for individuals, businesses, and other concerned parties to influence new rules by expressing their concerns, questions, and issues during the notice and comment period. Before publishing a final rule, the agency must review and respond to each unique comment, including making any necessary clarifications or changes to the final rulemaking. Follow the instructions below if you wish to submit a comment expressing concern or support for any aspect of this rulemaking.
To submit a comment on this rulemaking, visit: https://www.regulations.gov.
- Enter the docket number into the search bar: USCIS-2026-0298
- Scroll to find the proposed rule titled, “Fee for Certain H-1B Petitions” and click “Comment”.
- Enter your comment into the text box or upload a file.
Additional Resource: For additional information and guidance on submitting a comment, see AILA’s guidance on commenting on the proposed $103,265 H-1B fee rule.
Tips for drafting an effective comment – include the following in your submission:
- Introduction explaining why you are interested in the regulation and your experience on the subject;
- Background clarifying the part of the regulation you are commenting on;
- Analysis of your argument or comments and discussion of supporting evidence;
- Recommendations describing your suggestions; and
- Conclusion recapping your main arguments and recommendations.
