States Challenge Presidential Proclamation 10973, $100,000 Fee on H-1B Petitions

(UNITED STATES) — USCIS reaffirmed on March 31, 2026 that certain new H-1B petitions must include an added $100,000 fee, even as FY 2027 cap filings begin and a federal court fight continues.

The fee comes from Presidential Proclamation 10973. It applies mainly to new H-1B beneficiaries who are outside the United States and need consular processing. USCIS says the payment is required for covered petitions filed on or after 12:01 a.m. Eastern on September 21, 2025.

That update lands during an unusual FY 2027 cap season. This year combines three major changes: the one-registration-per-beneficiary rule, a new weighted selection system favoring higher wages, and the added $100,000 fee for many first-time overseas hires.

FY 2027 cap season timeline

As of April 4, 2026, employers should assume the lottery phase has closed and selected cases are moving into full petition filing.

📅 Key Date: Selected FY 2027 cap cases generally must be filed between April 1 and June 30, 2026.

USCIS has not yet released final FY 2027 registration totals or a confirmed selection rate. That means a direct registration comparison to FY 2026 is still pending. What is clear is that the cap remains 85,000 total slots, with 65,000 regular cap numbers and 20,000 U.S. advanced degree numbers.

How the $100,000 fee works

The new charge is separate from standard H-1B filing fees. USCIS states that covered employers must pay through pay.gov before filing Form I-129. If a covered petition arrives without proof of payment, USCIS has said it will deny the filing.

The fee does not apply to every case. Current guidance says it mainly reaches new H-1B workers outside the U.S. It generally does not apply to:

• Extensions for workers already in H-1B status
• Change-of-employer petitions for workers already in status
• Amendments
• Rare national interest exceptions

That structure is already shifting hiring strategy. Many employers are prioritizing candidates already in the United States, including F-1 OPT workers, because a change of status may avoid the new fee.

⚠️ Employer Alert: The $100,000 fee is not a substitute for regular H-1B fees. Covered employers must pay both the standard filing fees and the added proclamation fee.

Official legal position from USCIS and DHS

USCIS and DHS are framing the fee as a lawful condition on entry, not a standard filing surcharge. USCIS has said the proclamation rests on presidential authority under the Immigration and Nationality Act.

DHS took the same position in court filings in December 2025. It argued that the payment is a condition of entry under INA § 212(f) and § 215(a). That matters because DHS says those sections allow broad entry restrictions without treating the fee as an ordinary user fee.

Employers should read the current H-1B program page carefully before filing. USCIS has updated it several times since October 20, 2025.

Weighted lottery now favors higher wages

A second major change took effect on February 27, 2026. DHS moved the FY 2027 cap process from a random lottery to a weighted selection system that favors higher-paid registrations.

That change puts wage planning at the center of cap strategy. Employers still must pay at least the higher of the prevailing wage or the actual wage. They also need a defensible SOC code and wage level.

Level I filings remain vulnerable, especially for broad job descriptions or third-party placements. Under a weighted selection system, lower wages may now hurt twice. They may face both lower selection priority and heavier specialty occupation review.

💼 Employee Tip: Ask for your SOC code, wage level, worksite location, and offered salary. Compare that salary with prevailing wage data at flcdatacenter.com.

The one-registration-per-beneficiary rule still applies. Multiple employers may register the same worker, but USCIS counts the beneficiary once for selection purposes. That rule reduced duplicate advantage in prior seasons and remains part of fraud control.

States challenge the fee in federal court

A coalition of 20 states is trying to block the fee in California v. Noem, pending in the District of Massachusetts, 1:25-cv-13829.

The states argue that the proclamation creates an unlawful tax and exceeds executive authority under the INA. They also argue it violates the Administrative Procedure Act.

The states include Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, and Michigan. They also include Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.

The legal fight matters because this is widely described as the most expensive filing fee in U.S. immigration history. The states say it will hit schools, hospitals, and nonprofit employers especially hard.

That concern is not abstract. State filings point to about 30,000 H-1B visas annually for educators and 17,000 for medical professionals. Smaller employers also say the fee locks them out of overseas hiring.

What happens next for selected and non-selected cases

If a registration was selected, the employer should move quickly on the full petition package. That includes the certified LCA, job evidence, degree match analysis, and proof of wage compliance.

If the case is subject to the proclamation, the employer must complete the pay.gov payment before filing. A missing payment record can lead to denial.

If a registration was not selected, the worker cannot file a cap-subject H-1B petition for FY 2027 through that registration. Other options may still exist.

Workers and employers should also watch the cap season page for more FY 2027 data and any court-driven changes.

⏰ Deadline: Employers should finish selected FY 2027 filings well before June 30, 2026, especially if the case needs proclamation fee payment or premium processing.

Looking ahead, the FY 2028 registration window will likely return in March 2027, unless DHS changes the calendar. Employers should begin role classification and wage review in January 2027.

Employers should now confirm whether a selected case triggers Presidential Proclamation 10973, complete any required pay.gov payment, verify the LCA wage level, and file before June 30, 2026. Employees should confirm selection status, review the offered wage against the correct SOC code, ask whether the case is change of status or consular processing, and monitor USCIS updates for any court ruling that affects the $100,000 fee before the October 1, 2026 start date.

📋 Official Resources: – H-1B Program: uscis.gov/h-1b-specialty-occupations – Cap Season: uscis.gov/h-1b-cap-season – Prevailing Wages: flcdatacenter.com