The US Department of Homeland Security published a proposed rule on 25 August 2026 that would attach a $103,265 fee to every H-1B cap-subject petition, including those filed under the advanced degree exemption. The proposal, docketed as USCIS-2026-0298 (RIN 1615-AD20), is DHS's second attempt at a six-figure H-1B fee after a federal court struck down the administration's earlier $100,000 proclamation-based charge in June 2026.
Unlike the June proclamation, which applied only to petitions for workers outside the US, this version reaches nearly anyone filing a new H-1B cap petition, whether the worker is abroad or already in the country. DHS says the fee would help fund the immigration court system and the agencies that administer it. The US Chamber of Commerce, several Democratic-led states, and a coalition of employers and unions have already signalled they will challenge it.
What the Proposed Rule Covers
- Fee amount: $103,265 per H-1B cap-subject petition, on top of existing filing, fraud-prevention and ACWIA fees.
- Who it hits: All cap-subject petitions, including those claiming the advanced degree (master's) exemption.
- Who it doesn't hit: Cap-exempt petitions filed by nonprofit research organisations, governmental research organisations and institutions of higher education.
- Legal basis: A formal notice-and-comment rulemaking, not an executive proclamation — the route DHS is using specifically because the proclamation approach lost in court.
- Comment period: 30 days from the 25 August 2026 Federal Register publication, closing 24 September 2026.
- Effective date: None yet. This is a proposed rule; DHS must review public comments before issuing a final rule with its own effective date and transition provisions.
What This Means for HR and Mobility Teams
The fee is not in effect and may not survive the same legal challenges that ended the June proclamation. But the timing matters for two reasons. First, the FY2028 H-1B cap registration window typically opens in March, and any sponsor budgeting for that cycle now needs a contingency line for a fee that could add over $100,000 per hire regardless of role or seniority. Second, because the fee would apply to petitions for workers already inside the US, not just new arrivals, it reaches change-of-status and extension filings that HR teams might otherwise treat as routine and low-cost.
Employers with pending or upcoming cap-subject filings should not assume the fee applies retroactively or that it will be finalised as written. The 30-day comment window is the only formal channel to flag operational impact before DHS drafts a final rule.
Action Steps
- Flag any H-1B cap-subject petitions planned for FY2027 or FY2028 to finance and legal teams now, before budgets are locked.
- Distinguish cap-subject from cap-exempt filings in your pipeline. University, nonprofit and government research sponsorships are unaffected as proposed.
- Track the docket (USCIS-2026-0298) directly rather than relying on secondary coverage, since the comment period closes 24 September 2026 and the rule could change materially before finalisation.
- Where possible, evaluate whether a role can be filed under a cap-exempt sponsor or an alternative visa category (L-1, O-1, TN) if the fee is finalised.
- Loop in outside counsel or your immigration provider on any petition already in preparation, since a final rule with a short transition window could land with little notice.
At xpath.global, our work permit and visa advisory team tracks US immigration rulemaking in real time, including fee changes like this one, and flags what it means for petitions already in your pipeline. If you're budgeting for H-1B cap season or have filings in progress, speak to our team at https://xpath.global.
"Sources: Federal Register — Fee for Certain H-1B Petitions, 25 August 2026 (https://www.federalregister.gov/documents/2026/08/25/2026-17324/fee-for-certain-h-1b-petitions); Ogletree Deakins — DHS Proposes New $103,265 Fee for Cap-Subject H-1B Petitions (https://ogletree.com/insights-resources/blog-posts/dhs-proposes-new-103265-fee-for-cap-subject-h-1b-petitions/); Bloomberg — Trump Devises New $100,000 H-1B Visa Fee After Defeat in Court, 24 August 2026 (https://www.bloomberg.com/news/articles/2026-08-24/trump-devises-new-100-000-h-1b-visa-fee-after-defeat-in-court)"
