- DHS proposed a $103,265 H-1B fee for cap-subject petitions, including some workers already in the United States.
- The proposal was posted in the Federal Register on August 24, 2026, starting a 30-day comment period.
- DHS projects $8.8 billion in annual revenue from 85,000 capped filings if the rule advances.
The Department of Homeland Security has proposed a $103,265 H-1B fee for capped filings, including petitions for workers already in the United States. The charge is not in force.
The plan would cover cap-subject H-1B petitions, including cases involving beneficiaries with master’s degrees. Its stated reach is tied to the annual H-1B cap, rather than to whether a worker is entering the country or already here.
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Many cap-exempt filings would sit outside the proposal. The category includes petitions from universities and certain nonprofit or government research organizations.
DHS posted the proposal in the Federal Register on August 24, 2026. The agency set a 30-day public comment period.
| India | China | ROW | |
|---|---|---|---|
| EB-1 | Oct 15, 2022 | Jul 01, 2023 | Current |
| EB-2 | Unavailable | Sep 01, 2021 | Current |
| EB-3 | Jan 01, 2014 | Jan 01, 2022 | Sep 01, 2024 |
| F-1 | Jan 22, 2020 ▲403d | Jan 22, 2020 ▲403d | Jan 22, 2020 ▲403d |
| F-2A | Aug 22, 2026 ▲31d | Aug 22, 2026 ▲31d | Aug 22, 2026 ▲31d |
The document is titled “Fee for Certain H-1B Petitions.” Its regulatory file is RIN 1615-AD20. A White House Office of Information and Regulatory Affairs record lists DHS and USCIS as the agencies and August 19, 2026 as the concluded review date.
The proposal remains a proposed rule, not a final fee requirement. The comment process comes before any final regulatory text could define the charge’s operation.
The estimate assumes 85,000 capped filings each year
DHS describes the proposed payment as a way to recover part of the cost of running the lawful immigration system. The rule calls it a “dedicated revenue mechanism.”
The administration projects about $8.8 billion in annual revenue, based on 85,000 cap-subject petitions. That figure is a projection tied to the number of filings used in the proposal’s estimate.
The plan would cover H-1B workers subject to an annual statutory cap. Master’s-degree cases would be included rather than treated as a separate exclusion.
The stated purpose reaches beyond a single petition. One description of the proposal says the money would support the broader legal immigration system, including federal immigration courts and U.S. Immigration and Customs Enforcement.
The coverage line remains the central dividing point. Institutions filing outside the annual cap would not fall into the same category described by DHS.
The proposed fee and the blocked charge use separate legal vehicles
| Measure | Legal vehicle | Coverage or status | Key date |
|---|---|---|---|
| New proposed fee | DHS regulation | Petitions subject to the annual cap, including some workers already in the United States | Posted August 24, 2026 |
| earlier $100,000 charge | Presidential Proclamation 10973 | Certain workers outside the United States | Signed September 19, 2025 |
| Earlier charge in court | Federal litigation | Payment requirement blocked | First Circuit action July 24, 2026 |
The earlier $100,000 charge came from Presidential Proclamation 10973, signed on September 19, 2025. It took effect at 12:01 a.m. Eastern Daylight Time on September 21, 2025.
A federal court blocked that policy in June 2026. The First Circuit denied the government’s emergency stay request on July 24, 2026, leaving the court order in place.
The two measures therefore occupy different stages. The proclamation-based payment remains tied to litigation, while DHS has opened a regulatory process for the new proposal.
Under the proclamation’s own terms, its restriction was set to expire on September 20, 2026 unless extended.
USCIS says the earlier payment remains subject to the court order
USCIS said DHS would comply with the order while pursuing its options. The agency also said the government still intended to seek the earlier payment if the ruling changed.
“DHS strongly disagrees with the court’s order and filed a motion to stay pending appeal with the United States Court of Appeals for the First Circuit. DHS will comply with the court’s order while DHS considers next steps. If this order is later lifted, DHS still plans to collect the payment.”
That statement addresses the proclamation-based charge. It does not turn the newer proposal into an immediately payable fee.
The administration’s regulatory move follows the court setback involving the earlier charge. The new filing gives DHS a separate route to seek payment through rulemaking.
The rule must pass through comments before DHS decides what comes next
The immediate process has several stages:
- DHS will receive public comments during the 30-day period announced with the August 24 posting.
- The agency can evaluate those submissions before issuing final regulatory text.
- The final text would determine how the requirement applies to particular petitions and workers.
- Any final rule could face later legal challenges.
Employers would need to examine whether a petition falls within the annual cap and whether the final text covers the filing. Employees already in the United States would need to distinguish their petition’s cap status from their physical location.
A petition filed through a university or qualifying research institution could present a different fee question from one subject to the annual cap. The proposed rule’s treatment of master’s-degree beneficiaries also makes the filing category, rather than the degree alone, a key factor.
The final regulatory text will control the effect on individual workers. Courts could also address the rule after DHS completes the rulemaking process.
The earlier proclamation carries a September deadline
The administration is pursuing the new charge through regulation rather than proclamation after the earlier court setback. The proclamation’s stated expiration date remains September 20, 2026 unless extended.
