The Department of Homeland Security has proposed adding a $103,265 fee to every H-1B petition subject to the annual cap. The amount would be paid when the employer files the petition, on top of the fees and payments that already apply.
The first practical point is also the most important: this is a proposed rule, not a current fee. Employers do not owe $103,265 under this proposal today. DHS must review public comments, decide whether to issue a final rule, and state when any final rule will take effect. Litigation could follow.
Still, a proposal this consequential should not be dismissed as background noise. It could affect hiring budgets, sponsorship commitments, and which employers can realistically use the H-1B cap process in 2027.
What DHS has proposed
The August 25, 2026 proposed rule would create a separate $103,265 fee for cap-subject H-1B petitions, including petitions selected under the regular 65,000 cap and the 20,000 advanced-degree exemption.
The charge would not replace the normal Form I-129 filing fee, the fraud-prevention fee, the Asylum Program Fee, premium processing, or other applicable charges. DHS says it would be additional. The proposal also states that a separate payment imposed by presidential proclamation could apply at the same time if such a payment were legally operative.
DHS calculated the amount by identifying approximately $8.78 billion in annual immigration-system costs and dividing that figure by an expected 85,000 fee-paying cap petitions. The revenue would support work across USCIS, Immigration and Customs Enforcement, Customs and Border Protection, the immigration courts, the State Department, and the Department of Labor. This is therefore not presented merely as the cost of adjudicating one H-1B petition.
Which filings would be covered
The proposed text focuses on H-1B petitions that are subject to the numerical cap. It would apply to selected petitions whether the worker seeks consular processing abroad or a change of status inside the United States. Being physically present in the United States would not, by itself, avoid the proposed charge.
The rule would not apply to H-1B petitions that are exempt from the cap. That generally includes qualifying petitions filed by institutions of higher education, certain affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations. Petitions for workers who have already been counted against the cap may also fall outside the cap under the statute, including many extensions and changes of employer.
Those general categories should not be used as a substitute for reviewing a particular filing. Whether a petition is cap-subject depends on the employer, the beneficiary's prior H-1B history, the requested action, and sometimes the relationship between organizations.
There is no small-employer discount in the proposal
DHS proposes the same additional fee regardless of employer size. Its own regulatory analysis estimates that the rule would have a significant economic impact on 11,051 small entities, representing 76 percent of the small entities it identified as affected.
That matters because a six-figure filing charge is not merely another line item. For a startup, small professional practice, nonprofit that does not qualify as cap-exempt, or regional business, the fee could exceed the recruiting budget for the role. The practical competition for cap numbers could shift toward employers that can absorb the charge.
The employer, not the foreign worker, is the petitioner. Businesses should not assume they may simply transfer a new government charge to the employee through repayment provisions, wage deductions, or side agreements. H-1B wage rules and other employment laws can restrict which costs may be imposed on the worker. Any cost-allocation plan requires separate legal review.
What happens next
Written comments are due by September 24, 2026. The official rulemaking docket identifies the proposal as USCIS-2026-0298. Electronic comments must be received before midnight Eastern time on the deadline. DHS asks commenters to identify the specific part of the rule at issue and support requested changes with data, information, or legal authority.
After the comment period, DHS may finalize the proposal as written, revise it, delay it, or withdraw it. A final rule would need to specify an effective date. The proposal itself does not make the fee payable and does not supply a current implementation date.
The rule's legal theory may also be tested. DHS relies on statutory authority to recover the full costs of immigration adjudication and naturalization services. Opponents may challenge whether that authority permits the agency to assign such broad interagency costs to this narrow class of petitions. It would be premature to predict the outcome of litigation that has not yet been filed against a final rule that does not yet exist.
What employers should do now
Employers considering the 2027 cap season should identify positions and candidates earlier than usual, but they should not book the proposed charge as a current legal obligation. Planning should use scenarios: the proposal does not take effect, a revised fee takes effect, or the full amount applies and survives initial court challenges.
Employers should also separate cap-subject hiring from cap-exempt options. A legitimate cap exemption depends on the law and facts. It cannot be created by relabeling an employer or arranging a paper affiliation. Where a worker has prior H-1B cap history, counsel should review whether the new filing would actually be subject to the cap.
Organizations that would be materially affected can consider submitting a focused public comment. Useful comments explain concrete consequences, provide reliable cost or workforce data, address feasible alternatives, and connect those facts to a specific part of the proposal. A general expression of support or opposition may carry less analytical value.
What prospective H-1B workers should do
Workers should not assume that an employer's current willingness to sponsor guarantees that the same employer will proceed if a six-figure fee becomes final. Ask whether the organization has reviewed the proposal, whether sponsorship approval is documented, and whether the role depends on selection in the cap.
At the same time, do not treat the announcement as the end of H-1B sponsorship. The fee is not yet law. Cap-exempt employment and certain filings for previously counted workers would remain outside the proposal. Other immigration categories may be relevant in some cases, but eligibility must be assessed individually rather than chosen solely to avoid a possible fee.
The honest answer today
The proposed fee is real. The obligation to pay it is not. The right response is neither panic nor complacency. Employers and workers should understand whether a planned filing would be cap-subject, preserve flexibility in hiring decisions, and watch for a final rule rather than relying on headlines that describe the proposal as already effective.
Zero One Legal can help employers and prospective workers identify the immigration questions that should be resolved before a sponsorship decision is made.
Official sources
This article provides general educational information and is not legal advice. Immigration rules, forms, fees, and procedures can change, and the law may apply differently to individual facts. Reading this article or contacting Zero One Legal does not create an attorney-client relationship. No result is guaranteed.