On August 25, 2026, the Department of Homeland Security (DHS) formally published a proposed rule that would impose a new $103,265 filing fee on all cap-subject H-1B petitions, including both the regular H-1B cap (65,000 visas) and the advanced degree exemption (20,000 visas). If implemented, this fee would be assessed in addition to all existing H-1B filing fees.
The proposed fee would not apply to cap-exempt H-1B petitions, including those filed by qualifying institutions of higher education, affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations.
According to DHS, the fee is intended to generate approximately $8.8 billion annually to support the administration of the U.S. immigration system. Unlike traditional USCIS filing fees, revenue generated through this proposed fee would be distributed among several federal agencies involved in immigration enforcement and adjudication, including:
- U.S. Citizenship and Immigration Services (USCIS)
- U.S. Immigration and Customs Enforcement (ICE)
- U.S. Customs and Border Protection (CBP)
- Department of State (DOS)
- Department of Labor (DOL)
- Executive Office for Immigration Review (EOIR)
This proposal marks a significant departure from longstanding USCIS fee-setting practices and is likely to draw considerable attention from employers, industry groups, educational institutions, and other immigration stakeholders. DHS has acknowledged that the fee could substantially decrease demand for H-1B filings and may have a significant economic impact on employers that rely on highly skilled foreign national talent.
Key Takeaways
- The proposed rule is not yet in effect. Employers should continue to follow current H-1B filing requirements unless and until a final rule is issued and implemented.
- The fee would apply only to cap-subject H-1B petitions. Both regular cap and advanced degree exemption (master’s cap) petitions would be subject to the new fee.
- Cap-exempt H-1B petitions would not be affected. This includes petitions filed by qualifying higher education institutions and certain affiliated nonprofit and research organizations.
- The fee would not apply to H-1B extensions, amendments, or change-of-employer petitions. These filings are not subject to the annual H-1B cap.
- Existing filing fees would remain in place. The proposed $103,265 fee would be charged in addition to all current H-1B filing fees, including the Form I-129 filing fee, Asylum Program Fee, ACWIA fee, Fraud Prevention and Detection Fee, and Premium Processing Fee, if requested.
- Litigation is expected. Given the unprecedented nature and substantial amount of the proposed fee, legal challenges are anticipated if DHS moves forward with implementation.
What’s Next?
DHS will accept public comments for 30 days following publication in the Federal Register before considering whether to issue a final rule. During this rulemaking period, stakeholders will have an opportunity to submit comments addressing the proposal’s legal, economic, and operational impact.
LAC is closely monitoring developments and will continue to provide updates as additional information becomes available. Our team is available to help employers assess the potential impact of this proposal, evaluate workforce planning strategies, and prepare for any future compliance requirements.
For questions regarding your H-1B program or immigration strategy, please contact a member of the LAC immigration team.
This update was prepared by Partner Diana Coker