United States | DHS to propose $103,265 fee for cap-subject H-1B petitions

The Department of Homeland Security posted a Notice of Proposed Rulemaking (NPRM), “Fee for Certain H-1B Petitions,” scheduled to be published in the Federal Register on Aug. 25, 2026, that would establish a new $103,265 fee for all H-1B cap-subject petitions, including petitions eligible for the advanced degree exemption. U.S. Citizenship and Immigration Services published an accompanying news release. Any changes to fee requirements would not take effect until a final regulation is published and effective.

Key takeaways:

Proposed fee would apply to cap-subject consular and change of status petitions. DHS is not proposing to require the fee for H-1B petitions that are not subject to the cap, including those filed by certain nonprofit research organizations, governmental research organizations and institutions of higher education; and petitions filed on behalf of individuals who have already been counted against the cap, such as extensions.

Fee would be in addition to existing fees and include small business and cap-subject nonprofits. The proposed $103,265 fee would be imposed in addition to all existing filing fees and would be payable at the time of filing. Cap-subject H-1B petitioners subject to the new fee also include small employers and many nonprofits, and the fee would be required for petitions filed under the advanced degree cap.

Public comment period opens Aug. 25. The NPRM is not immediately effective and public comments will be accepted for 30 days following publication of the proposal in the Federal Register, scheduled for Aug. 25, 2026.  

DHS states fee is needed to recover agency costs. According to the NPRM, “This fee would serve as a dedicated revenue mechanism to help recover a portion of the federal government’s costs of administering the lawful immigration system, including activities carried out by DHS, the U.S. Department of Justice, the U.S. Department of State, and the U.S. Department of Labor.”

Additional information: The rule is still in the proposal stage and is not currently in effect. After the public comment period ends, DHS will be required to review and consider the feedback it receives in formulating a final regulation. BAL is closely monitoring the progress of this regulation, including anticipated court challenges, and will provide updates on developments.

DHS has also submitted a proposed rule titled “Optional Practical Training Fees” to the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) for review. The text of that proposed rule has not yet been released. Once cleared for publication by OIRA, that rule will similarly be subject to a public comment period.

This alert has been provided by the BAL U.S. Practice Group.

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