The Department of Homeland Security (DHS) published a proposed rule on August 25, 2026, that would impose a new $103,265 filing fee on employers filing cap-subject H-1B petitions, including petitions qualifying for the advanced degree exemption. If implemented, the fee would be assessed in addition to all existing H-1B filing fees and government charges.

Key Highlights

Under the proposed rule:

• A new $103,265 fee would apply to all H-1B petitions subject to the annual cap. These are the H-1B filings associated with the annual H-1B lottery.
• The fee would be collected at the time of petition filing. The fee would only be assessed after the employee is notified of his or her selection in the lottery. The fee would have to be paid at the time the visa petition is filed with USCIS, normally during the 90-day period between April 1 and June 30 of each fiscal year.
• The fee would be imposed in addition to all other applicable USCIS filing fees and costs.
• DHS estimates the fee would generate approximately $8.8 billion annually, based on an estimated 85,000 cap-subject H-1B petitions filed each year.
• The fee would not apply to cap-exempt H-1B petitions, including petitions filed by certain institutions of higher education, nonprofit research organizations, and governmental research organizations.
• The fee would also not apply to H-1B extensions or H-1B transfers from one employer to another.

According to DHS, the proposed fee is intended to recover costs associated with administering the lawful immigration system, including adjudications, fraud detection, national security vetting, technology modernization, visa processing, labor standards enforcement, and interagency coordination.

Potential Impact on Employers

If finalized, the proposed fee would dramatically increase the cost of sponsoring new H-1B workers under the annual cap. Employers that rely on the H-1B program to fill specialized positions may need to reassess workforce planning, recruitment strategies, and immigration budgets.

Industries that frequently utilize cap-subject H-1B visas, including technology, health care, education, research, and engineering, could face significant additional costs when recruiting foreign national talent.

Legal and Policy Considerations

The proposal has generated significant discussion within the business and immigration communities. The American Immigration Lawyers Association (AILA) criticized the proposed fee as an unprecedented attempt to fund broader immigration system operations through employer-sponsored visa filings. AILA expressed concerns that the increased cost could limit access to the H-1B program for many employers and potentially affect the ability of U.S. businesses and institutions to recruit highly skilled professionals.

What Happens Next?

The proposal is not yet in effect. It must proceed through the federal rulemaking process before any new fee can be implemented. Stakeholders will have an opportunity to review the proposed rule and submit comments before DHS issues a final rule.

Employers planning to participate in future H-1B cap seasons should closely monitor developments and evaluate the potential financial impact should the proposal become final.

Recommendations

While the rule remains proposed, employers should:

• Monitor the progress of the rulemaking process.
• Review anticipated hiring needs that may require H-1B cap sponsorship.
• Evaluate the potential budgetary impact of increased government filing costs.
• Consult with immigration counsel regarding workforce planning strategies and possible alternatives where appropriate.

For questions regarding the proposed fee or its potential impact on your organization, please contact a member of our immigration team.