The U.S. Department of Homeland Security (DHS) has issued a proposed rule that would impose an additional $103,265 fee on every cap-subject H-1B petition, including petitions filed under the U.S. master’s degree exemption. The proposed fee would be paid at the time of filing and would be required in addition to all existing H-1B filing fees and other applicable charges. The rule is currently a proposal only and would not take effect unless DHS issues a final rule.
H-1B Petitions that Will be Affected
The proposed fee would apply to the annual H-1B cap cases—65,000 regular-cap numbers and 20,000 advanced-degree exemption numbers. It would not apply to cap-exempt H-1B petitions, such as qualifying petitions filed by institutions of higher education, affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations.
Proposed Revenue and Allocation
DHS states that the new fee would generate approximately $8.8 billion annually, using an assumed volume of 85,000 cap-subject H-1B petitions. The agency proposes to use the revenue to recover immigration-system costs across several federal entities, rather than only the direct cost of adjudicating H-1B petitions at USCIS. Proposed allocations include approximately $3.0 billion for USCIS, $2.96 billion for the Executive Office for Immigration Review (EOIR), $1.21 billion for the Department of Labor (DOL), $1.05 billion for U.S. Immigration and Customs Enforcement (ICE), $484 million for the Department of State (DOS), and $76.2 million for U.S. Customs and Border Protection (CBP).
DHS relies principally on INA §286(m) and §286(n), which it interprets as permitting USCIS fee revenue deposited in the Immigration Examinations Fee Account (IEFA) to recover the full costs of immigration adjudication and naturalization services, including eligible costs incurred by other federal agencies. The proposal would represent a substantial departure from traditional USCIS fee-setting practices because it would single out cap-subject H-1B petitioners to fund wide-ranging, interagency immigration activities.
Anticipated Impact on Employers
DHS acknowledges that the fee is significant and may reduce H-1B filings, particularly among small employers. DHS nevertheless maintains that cap-subject H-1B petitioners have comparatively greater ability to pay than other immigration benefit requestors. Its regulatory analysis estimates that the proposal would significantly affect 11,051 small entities, or 76 percent of small entities that filed cap-subject H-1B petitions in FY2025.
Difference from Presidential Proclamation 10973
DHS also notes that the proposed fee is separate from the prior $100,000 H-1B payment connected with Presidential Proclamation 10973. According to the proposed rule, the guidance implementing that payment was vacated by a federal district court in June 2026, with an appeal pending at the time of publication. DHS states that, if both obligations were ultimately applicable, a petitioner could be required to pay both amounts.
Summary and Conclusion
The notice is scheduled for publication in the Federal Register on August 25, 2026. Public comments must be submitted through the federal Rulemaking Portal at Regulations.gov under DHS Docket No. USCIS-2026-0298, generally within 30 days after publication. Employers, stakeholders, and practitioners may wish to comment on the agency’s claimed statutory authority, the methodology used to assign interagency costs to H-1B employers, the projected filing volume, and the anticipated effects on U.S. businesses and H-1B workers.