A Proposed $103,265 H-1B Fee: What It Would Mean, and What to Do Before Comments Close | Yingzhong Law Offices
A Proposed $103,265 H-1B Fee: What It Would Mean, and What to Do Before Comments Close
Jinwen Liu · August 24, 2026 · 8 min read
News
August 24th, a Sunday afternoon. Lin was about three months from filing her first H-1B—an F-1 student on OPT, offer in hand—when the number landed in her group chat: $103,265.
That number isn't law. Not yet. On August 24, 2026, the Department of Homeland Security sent a proposed rule to public inspection—set for the Federal Register the next day—that would add a $103,265 fee to most cap-subject H-1B petitions. A proposal is not a rule. But this one is specific, the comment clock is already running, and if you're anywhere near the H-1B cap, it's better understood now than in a scramble later.
What's actually being proposed
The rule, titled “Fee for Certain H-1B Petitions” (Docket USCIS-2026-0298, RIN 1615-AD20), would charge $103,265 for each cap-subject H-1B petition—on top of every fee that already exists. It would apply to petitions under the regular 65,000 cap and the 20,000 U.S. advanced-degree exemption, and it would hit at the petition-filing stage, not at registration.
Where does the number come from? DHS did not calculate what it costs to adjudicate an H-1B. It started with a target—roughly $8.8 billion a year—and divided by about 85,000 expected cap petitions. That arithmetic ($8,777,488,035 divided by 85,000) lands at $103,264.57, rounded up. By the agency's own accounting, the money would fund far more than H-1B processing; the ten-year projection of about $87.8 billion is spread across the immigration courts, worksite enforcement, and other programs.
Who would pay—and who wouldn't
If it is finalized as written, the fee would fall on cap-subject petitions: the regular lottery and the master's cap. That includes an F-1 student's cap-subject change-of-status petition. In other words, “but I'm already in the U.S.” would not be an escape hatch—Lin's petition would be squarely within it.
The proposal also carves out real exemptions. As written, it would not apply to cap-exempt petitions; to extensions, amendments, or transfers for someone already counted against the cap; or to universities, their affiliated nonprofits, and nonprofit or governmental research organizations. If you work at a university or a qualifying nonprofit research institution, this proposal would not add the fee to your petition.
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This is not the $100,000 fee you already heard about
It is easy to confuse the two. Earlier in 2026, a separate $100,000 charge arrived through a presidential proclamation (Proclamation 10973). A federal judge vacated that one on June 8, 2026, and the government appealed; it is still being fought out in the First Circuit. The $103,265 fee is a different animal. It comes through notice-and-comment rulemaking under a different legal authority (INA 286(m))—a path that is harder to strike down on the grounds that sank the proclamation. Similar price tag, different mechanism.
Why a proposal still matters today
The instinct is to wait and see. It's only a proposal; courts might step in; the comment period might change it. All true. But two things are real right now. The comment window is short—about 30 days, closing on or about September 24, 2026. And the uncertainty itself is already shaping decisions.
Lin's math shows how. Her employer, a 40-person startup, had budgeted for legal fees and the usual filing costs. An added $103,265 changed the conversation from “when do we file” to “can we file.” That is the real-world effect of a proposal—felt long before a single dollar is due.
What to do during the comment window
File a comment. Public comments on a proposed rule are not decoration—agencies must respond to substantive ones, and the comment record often becomes the foundation for a later court challenge. If this fee would affect you or your employer, a specific, factual comment submitted through regulations.gov (Docket USCIS-2026-0298) before the deadline carries more weight than a post on social media.
Plan for both outcomes. If you're cap-subject, map what you'd do if the fee is finalized and if it isn't. For some people that means looking hard at cap-exempt employers—universities, affiliated nonprofits—or at O-1 eligibility. For others it means a direct conversation with an employer now about who would absorb the cost.
Watch the exemptions, not just the headline. Under this proposal, the gap between a cap-subject and a cap-exempt petition is six figures. That line is worth understanding before you assume the worst about your own case.
How we're advising clients
We're treating this as what it is—a serious proposal that is not final. We're helping employers model the cost both ways, checking whether a role could qualify as cap-exempt, and drafting comments for clients who want their objection on the record before September 24. Where O-1 or another path is realistic, we're mapping it now, not next March.
If you or your company sponsors H-1Bs, this is a sensible moment for a short strategy call—while the rule is still open for comment and your options are still open too.
Timeline at a glance
August 24–25, 2026 — DHS proposed rule “Fee for Certain H-1B Petitions” goes on public inspection and into the Federal Register. It is a proposal, not final.
On or about September 24, 2026 — The public comment period closes (about 30 days). Comments go through regulations.gov, Docket USCIS-2026-0298.
If finalized — A $103,265 fee would apply to cap-subject H-1B petitions at filing, with the exemptions noted above. As of late August 2026, it is not in effect.
Frequently asked questions
Is the $103,265 fee in effect now?
No. As of late August 2026 it is a proposed rule in a public comment period. It is not law, and no one is being charged it yet.
I'm an F-1 student already in the U.S.—would it apply to me?
If your H-1B petition is cap-subject (the regular or the master's cap), the proposal as written would apply even though you are already here. Cap-exempt petitions would not be charged.
Is this the same as the $100,000 fee from the proclamation?
No. That was a separate measure under Proclamation 10973, vacated by a court on June 8, 2026 and now on appeal. The $103,265 fee is a different rule under different legal authority.
What can I actually do right now?
Submit a comment through regulations.gov before the deadline, and prepare a plan for both outcomes—including cap-exempt employers or O-1 where those are realistic for you.
Book a free consultation / 预约免费咨询
If your case—or your company's hiring plan—runs through the H-1B cap, let's talk before the comment window closes. Book a free consultation and we'll model what this proposal would mean for you, and what to do while it's still open.
Related services: H-1B petitions & cap strategy · O-1 and cap-exempt alternatives · Employer immigration compliance.
Sources & References: DHS/USCIS Notice of Proposed Rulemaking, “Fee for Certain H-1B Petitions,” Federal Register (Aug. 25, 2026), Docket USCIS-2026-0298, RIN 1615-AD20; USCIS Newsroom, “DHS Proposes Additional H-1B Fee” (Aug. 2026); Proclamation 10973 and related litigation (order vacating the $100,000 fee, June 8, 2026; appeal pending before the First Circuit).
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Jinwen Liu is the Managing Attorney at Yingzhong Law Offices, specializing in employment-based and investment immigration.
Legal Disclaimer
This article is for informational purposes only and does not constitute legal advice. Immigration laws and policies change frequently, and every case is different. For advice specific to your situation, consult a qualified immigration attorney. Past results do not guarantee similar outcomes. Attorney Advertising.
