DHS Wants $103,265 for Every Cap-Subject H-1B Petition — And It Stacks on Everything Else

If you are planning to sponsor anyone in the next H-1B cap season, the math just changed — on paper, at least. On August 25, DHS published a proposed rule that would add $103,265 to every cap-subject H-1B petition, on top of every fee you already pay. It is not law yet. But it is far enough along to plan around.

What happened

On August 25, 2026, DHS published a notice of proposed rulemaking in the Federal Register — Fee for Certain H-1B Petitions, 91 FR 54817 (RIN 1615-AD20, DHS Docket No. USCIS-2026-0298). It proposes a $103,265 fee, payable at the time of filing, on all H-1B cap-subject petitions — including those filed under the advanced degree exemption. Public comments close September 24, 2026. USCIS announced it the same week.

Two things make this different from an ordinary fee increase.

First, it is not folded into the existing I-129 fee. DHS proposes it as a standalone charge at a new 8 CFR 106.2(a)(3)(xii), sitting alongside everything you already owe rather than replacing any of it.

Second, it is not priced to cover the cost of adjudicating your petition. DHS is proposing to use cap-subject H-1B employers to fund the immigration system generally — USCIS, CBP, ICE, the immigration courts at DOJ, the State Department, and the Labor Department. The stated reasoning is ability to pay: employers who can meet H-1B wage obligations can carry these costs, rather than spreading them across applicants who, in the agency’s words, “may have fewer resources available to absorb additional fee increases.”

What it actually means

Right now, nothing. This is a proposal, not a rule in force. Nobody is paying $103,265 today, and DHS has to work through the comments and publish a final rule before anything changes. Thousands of comments were filed in the first week alone.

Four points are worth holding onto.

It is cap-subject only. Cap-exempt filings — universities, nonprofit research organizations, governmental research organizations — would not be touched. The advanced-degree exemption does not help: those petitions are still cap-subject and would still owe the fee.

It stacks, including on proclamation payments. DHS says plainly that a petitioner subject to both a proclamation-required payment and this fee would owe both amounts. Context matters here: a federal court vacated the policy implementing the $100,000 proclamation payment in June, and after the First Circuit denied the government’s motion for a stay on July 24, 2026, that payment requirement is not being collected. So this is not a second bill on top of one you are paying today — but the rule text contemplates a world in which both apply.

It is not the only cost moving. CBP’s 9-11 Response and Biometric Entry-Exit Fee final rule (91 FR 51360, August 10, 2026) now applies that fee to all H-1B and L-1 extension-of-stay petitions. DOL has a separate pending rule that would raise prevailing wage floors (91 FR 15454, March 27, 2026).

DHS expects filings to fall. The rule concedes that registrations may drop and that some employers, including small entities, may file fewer petitions. That is in the document, not our reading of it.

Who this hits hardest

DHS acknowledges only that “some employers, including small entities, may file fewer petitions.” Our own read is blunter: large employers can absorb this and an eight-person company sponsoring one engineer generally cannot. If this becomes final in its current form, we expect the cap lottery to shift from a numbers game to a budget question, and we expect the employers who drop out first to be startups, small consultancies, and early-stage companies.

What we’re doing about it

We are filing a comment before September 24 and encouraging employer clients to do the same. Specific, data-backed comments from actual petitioners carry more weight than form letters, and the docket is public.

For clients with FY 2028 sponsorship plans, we have started running the alternatives in parallel rather than waiting for a final rule — cap-exempt placements, L-1 transfers where there is a qualifying overseas entity, O-1 for candidates with the record to support it, and E-2 where the person is a treaty national with capital to deploy. None of these is a drop-in substitute for H-1B, and we are not pretending otherwise. The point of looking now is to find out which ones are real for a given company before cap season, not during it.

We are not repricing anything on the strength of a proposal, and we would be cautious about anyone who does.

If you sponsor H-1B workers and want to know how this would land on your filings — or whether another category is a genuine option for a specific hire — book a consultation and we’ll work through it.

This post is general information, current as of when it was written — not legal advice, and no substitute for talking to an attorney about your own case. This area is changing quickly, and reading this doesn’t make us your lawyers. Please get advice on your specific situation before you act.