The $103,265 H-1B fee is a charge the Department of Homeland Security has proposed on every H-1B cap-subject petition an employer files. It was proposed in a rule filed for the Federal Register on August 25, 2026. It is a proposal, not a final rule, so it is not in effect and nothing is owed under it yet. Cap-exempt employers, such as universities and their affiliated nonprofits, would not pay it.
Unlike the last $100,000 fee that is tied up in court, this new fee would apply to all cap-subject petitions, regardless of whether the petition requests a change of status or consular processing (this would include all new entries in the H-1B lottery, such as F-1 students).
Key takeaways
- What is it? DHS has proposed a $103,265 fee on each H-1B cap-subject petition, paid by the employer at the time the petition is filed.
- Is it in effect? No. It is a proposed rule with a 30-day public comment period. It has not been finalized.
- Who would be exempt? Cap-exempt petitions would not owe the fee, including those filed by universities, their affiliated nonprofits, and certain nonprofit or government research organizations.
- Important: This proposal is SEPARATE from the $100,000 fee created by a 2025 presidential proclamation. A federal court blocked that earlier fee, and it is not being collected while the government appeals.
- Need help? Ellis attorneys prepare H-1B petitions and track fee and rule changes as they happen. Start here →
What is the proposed $103,265 H-1B fee?
The proposed fee is a one-time charge of $103,265 that an employer would pay when filing an H-1B petition that counts against the annual cap. DHS described it in a proposed rule filed for publication in the Federal Register on August 25, 2026. It would apply to both the regular cap and the advanced-degree cap, which is the set of 20,000 petitions reserved for workers holding a U.S. master's degree or higher.
The charge would come on top of the standard government filing fees, not replace them. DHS has estimated that the fee could raise roughly $8.78 billion a year, based on about 85,000 cap-subject petitions filed annually. Because the fee attaches to the employer's petition, the sponsoring employer would pay it, the same party that already pays the base filing fees.
Is the $103,265 fee in effect yet?
No. The fee exists only as a proposed rule, which is the first formal step in a longer process. After a proposed rule is published, the public has a window to comment, and here that window is 30 days. DHS then reviews the comments before it can issue a final rule.
A proposal can change at that time. The dollar amount, the scope, and the effective date can all be revised in the final rule, and a proposal can also be withdrawn or challenged in court before it ever takes effect. The proposal filed on August 25 did not set an effective date. Until a final rule is published and takes effect, the $103,265 fee is not charged on any petition.
Who would pay, and who is exempt?
The fee would fall on employers filing cap-subject petitions, and the sponsoring employer would pay it. Cap-subject petitions are the ones that go through the annual H-1B lottery, so the fee is tied to new hires selected in that process rather than to workers already in H-1B status.
The proposal excludes cap-exempt petitions. That group includes higher-education institutions, nonprofits affiliated with a university, and certain nonprofit or government research organizations, all of which can file H-1B petitions without going through the cap. An employer in one of those categories would not owe the fee under the proposal as written.
The fee is charged on the employer's cap petition, not on the worker, so being a former student on F-1 or OPT does not create a personal exemption. If a graduating student is selected in the H-1B lottery, the employer's petition for that student would be cap-subject, and the proposed fee would apply to it like any other cap petition.
Does it apply to renewals, extensions, and transfers?
By its terms, the proposal targets cap-subject petitions, which are new petitions selected through the lottery. Extensions, amendments, and most changes of employer for someone already in H-1B status are generally not counted against the cap, so on the face of the proposal they would fall outside the fee.
How the proposal differs from the 2025 $100,000 fee
The 2025 fee came from a presidential proclamation signed on September 19, 2025, and it applied to certain H-1B workers entering the United States from abroad. The 2026 proposal instead uses notice-and-comment rulemaking, and it would reach all cap-subject petitions regardless of where the worker is located.
The older fee is currently blocked. A federal district court in Massachusetts vacated it on June 8, 2026, finding that it worked as a tax that the president lacked authority to impose and that it skipped required rulemaking steps. On July 24, 2026, the First Circuit Court of Appeals declined to pause that ruling, so the $100,000 fee is not being collected while the appeal continues. A separate case in Washington, D.C., reached the opposite conclusion, which sets up a split that a higher court may eventually have to resolve.
Feature | $100,000 fee (2025) | $103,265 fee (2026 proposal) |
|---|---|---|
How it was created | Presidential proclamation | Proposed rule, with public comment |
Who it reached | Certain H-1B workers entering from abroad | All H-1B cap-subject petitions, wherever the worker is |
Current status | Blocked by courts; not collected | Proposed only; not in effect |
What an H-1B petition costs now
Even with the proposed fee set aside, an H-1B petition carries several government fees, and the employer generally pays them.
Fee | Amount | Who pays | Notes |
|---|---|---|---|
Base Form I-129 filing fee | $780, or $390 for employers with 25 or fewer full-time employees | Employer | Standard petition fee |
Asylum program fee | $600, or $300 for small employers, $0 for nonprofits | Employer | Added under the 2024 fee rule |
ACWIA training fee | $1,500, or $750 for employers with 25 or fewer employees | Employer | Some nonprofits and universities are exempt |
Fraud prevention and detection fee | $500 | Employer | Applies to new employment or a change of employer |
Premium processing (optional) | $2,965 | Employer or worker | Form I-907, for a decision within 15 business days |
If the $103,265 proposal is finalized as written, it would be added to these amounts for cap-subject petitions, which is why it has drawn so much attention from employers that hire through the lottery.
How Ellis can help
H-1B sponsorship is an employer-driven process with real money and firm deadlines attached, and a proposed six-figure fee raises the stakes for planning ahead. Ellis pairs licensed immigration attorneys with case-management software, so employers can prepare petitions, respond to requests for evidence, and keep every filing and fee in one place. Schedule a free consult →
This article is for general informational purposes only. It is not legal advice.
