Labor & Employment Law Daily Wrap Up, FEDERAL REGULATIONS—DHS proposes $103,265 H-1B fee, raises specter of total fee amount exceeding $203K, (Aug 24, 2026)

By Brandi O. Brown, J.D.

The agency said employers would be required to pay both amounts if both were in effect, although the proclamation is currently subject to litigation and is expected to expire before the proposed fee could take effect.

In tomorrow’s Federal Register, the Department of Homeland Security is proposing a new $103,265 fee on employers filing cap-subject H-1B petitions—a charge that closely mirrors the controversial $100,000 H-1B payment requirement the Trump administration attempted to impose last year through a presidential proclamation.

The proposal, scheduled for publication in the Federal Register on August 25, would require employers to pay the additional fee when filing H-1B petitions subject to the annual visa cap, including petitions filed for beneficiaries eligible under the master's degree exemption.

Exemptions. The fee would be imposed on top of all existing H-1B filing fees and other required payments. Cap-exempt petitions filed by universities and certain nonprofit and research organizations would not be subject to the fee under the proposal.

DHS said the fee would generate dedicated revenue to help cover the costs of administering the nation's legal immigration system across multiple federal agencies, including U.S. Citizenship and Immigration Services, Customs and Border Protection, Immigration and Customs Enforcement, the Justice Department's Executive Office for Immigration Review, the State Department, and the Labor Department.

President’s proclamation. The proposal comes less than a year after President Donald Trump issued Proclamation 10973, which sought to require certain H-1B employers to make a $100,000 payment as a condition related to the admission of foreign workers. A federal district court vacated agency guidance implementing that payment in June and, in July, the First Circuit held that the administration was not entitled to a stay pending appeal of that order and final judgment. The appeals court found that the government had not made a “strong showing” that it was likely to succeed in challenging the plaintiffs’ excess-of-statutory-authority APA claim on the merits. That appeal remains pending.

Unless extended, the proclamation is scheduled to expire September 21, 2026.

Different foundations, says DHS. While acknowledging that the proposed $103,265 fee is "close to" the earlier $100,000 payment, DHS argues that the new proposal rests on a different legal foundation. The proclamation relied on presidential authority to restrict entry of foreign nationals, DHS contends, while the proposed fee is based on provisions of the Immigration and Nationality Act that DHS says allow it to recover the full costs of providing immigration adjudication and naturalization services.

Potential for $203,365 fee? DHS emphasizes that the proposed fee is separate from any payment that could be required under a presidential proclamation. The agency said employers would be required to pay both amounts if both were in effect, although the proclamation is currently subject to litigation and is expected to expire before the proposed fee could take effect.

“The proposed fee, when required, would be in addition to any other applicable fees or payments,” the NPRM explains, “including any separate payment obligation required under a Presidential Proclamation.”

“Accordingly,” it notes, “to the extent a petitioner is subject both to a proclamation-required payment and to the additional H-1B fee proposed in this rule, the petitioner would be required to pay both amounts.”

Calculation of fee. According to DHS, the fee amount was calculated by dividing approximately $8.78 billion in projected recoverable costs by the 85,000 H-1B visas available annually under the statutory cap. That calculation produced a fee of $103,264.57, which DHS rounded to $103,265.

Historically, the NPRM explains, USCIS fee regulations have been used primarily to recover costs incurred by the agency itself. This proposal would expand that approach by using H-1B petition fees to fund immigration-related activities performed across the federal government, including immigration court operations, labor certification programs, visa vetting, border inspection technology, and immigration enforcement functions.

DHS acknowledged that employers may object to paying a fee that substantially exceeds the direct cost of adjudicating an H-1B petition. However, the agency said it chose to place the financial burden on cap-subject H-1B petitioners rather than spread the costs across all immigration benefit applicants because H-1B employers generally have greater financial resources and benefit from access to highly skilled foreign workers.

On July 17, 2026, the U.S. Citizenship and Immigration Services announced it had received enough petitions to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year 2027.

In the NPRM, the agency also argued that the fee could reduce employer reliance on foreign labor by making companies more likely to hire qualified U.S. workers when available. DHS said the fee may indirectly help protect wages and job opportunities for U.S. workers while still allowing employers to sponsor foreign workers when a legitimate need exists.

Small business impact. At the same time, DHS acknowledged significant economic consequences. The agency estimates the proposal would have a significant economic impact on about 11,051 small businesses, representing roughly 76 percent of small entities that filed cap-subject H-1B petitions in fiscal year 2025.

Public comments will be accepted for 30 days after publication of the proposed rule in the Federal Register.

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