New $103,265 H-1B Fee Would Hit Workers Already in the US

The document is a Notice of Proposed Rulemaking called Fee for Certain H-1B Petitions, published in the Federal Register on August 25, 2026 under DHS Docket No. USCIS-2026-0298. It adds a fee provision at 8 CFR 106.2(a)(3)(xii).

The amount is $103,265, due when the employer files the H-1B petition. It stacks rather than replaces. The base I-129 fee, the ACWIA training fee, the fraud prevention and detection fee, the asylum program fee and premium processing all still apply on top.

The fee attaches to the petition, and registrations are a separate step. Employers file an electronic registration in March, and only the registrations USCIS selects become petitions. An employer that registers thirty candidates and wins three would owe the fee three times, not thirty. The registration fee stays separate and stays non-refundable.

The fee covers every cap-subject H-1B petition, including filings under the advanced degree exemption, the 20,000-visa master’s cap. DHS writes that it applies "only to H-1B cap-subject petitions, including those eligible for the advanced degree exemption."

Nothing in the text turns on geography. No consular-versus-change-of-status split, no carve-out for someone already working in the country, no mention of entry at all. The only test is whether the petition counts against the annual cap.

That widens the reach considerably. Proclamation 10973 built the $100,000 payment as an entry restriction in September 2025. It could only touch people arriving from outside the country, and USCIS confirmed early that an in-US change of status petition fell outside it. This rule covers the student who was outside the last one.

The group that changes category here is large and specific. F-1 graduates moving from OPT or STEM OPT into a first sponsored job. H-4 and L-2 spouses picking up their own employment. Anyone in another status whose employer files a cap-subject petition for them. Each of those is a change of status inside the US, and each carries the fee as drafted.

Cap-exempt petitions are excluded. The H-1B fee exemption covers three groups, and which one an employer falls into now carries a six-figure difference.

DHS did not price the work of adjudicating an H-1B petition. It priced something much larger and divided by the number of petitions.

The arithmetic in the rule: $8,777,488,035 in claimed costs divided by 85,000 projected cap-subject petitions gives $103,264.57, rounded to the nearest five dollars.

Very little of that $8.78 billion is USCIS adjudication work. DHS counts costs across Customs and Border Protection and Immigration and Customs Enforcement. It also counts the immigration courts run by the Executive Office for Immigration Review, consular sections at 270 State Department posts, and Labor Department enforcement.

DHS grounds its authority in INA sections 286(m) and (n), which let the agency recover the costs of providing immigration adjudication and naturalization services. Whether that language stretches to funding immigration courts and consular posts is the question the whole rule rests on.

DHS assumes employers will absorb the fee. The rule states that cap-subject petitioners are "willing to pay and can afford an additional $103,265 fee," and its revenue forecast holds filing volume flat at 85,000 petitions a year.

The small-business analysis in the same document points the other way. DHS examined 28,649 cap-subject petitioners and classified 14,541 of them as small entities. Of those, 11,051 would face what the rule calls a significant economic impact. The rule defines that as a cost above one percent of annual revenue. That is 76 percent of the small employers in the program.

DHS also cites research showing cap-subject filings fall below 85,000 once a fee passes $100,000. Both positions cannot hold at once. A fee that prices out three quarters of small filers will move volume, and the revenue forecast assumes volume does not move.

On the totals, the rule projects $8.78 billion a year, or $74.9 billion over ten years discounted at three percent and $61.6 billion at seven percent.

The two charges are separate instruments resting on separate legal foundations, and the rule states that a petitioner caught by both would owe both.

The dates that matter:

What to do depends on where your case stands:

The lottery was already a bottleneck, with registrations running several times the 85,000 available places every year. A six-figure charge on top of those odds changes the arithmetic for employers and workers alike. Several routes below never touch the cap, and most were open all along.

The O-1A visa covers extraordinary ability in the sciences, business, education or athletics. No cap, no lottery, no annual filing window, and renewable without a fixed ceiling. It asks for evidence across at least three of eight criteria, which is a real body of work to assemble.

The EB-2 NIW is a self-petitioned green card that skips both employer sponsorship and labor certification. For researchers and specialists whose work carries national importance it can beat years of H-1B renewals as a route to permanence.

A cap-exempt H-1B at a university, an affiliated nonprofit or a research organization avoids the lottery and, under this proposal, the fee. The L-1A visa suits managers and executives with a year of qualifying employment at a related company abroad. The E-2 visa works for nationals of treaty countries investing in a US business.

Opposition formed within a day. The US Chamber of Commerce, Democratic state attorneys general and a coalition of unions and employers all fought the $100,000 payment. Each has signalled it will contest a final rule here.