New $103,265 H-1B Fee Proposed: What DHS’s August 2026 Rule Means for Employers

Last updated: August 27, 2026

The H-1B fee landscape has shifted again. On August 25, 2026, the Department of Homeland Security and U.S. Citizenship and Immigration Services published a proposed rule in the Federal Register introducing a new $103,265 fee on cap-subject H-1B petitions — a charge that would apply in addition to the $100,000 fee President Trump announced by proclamation in 2025. For employers who spent the past year adjusting sponsorship budgets around that earlier number, the proposal means the true cost of a single new H-1B hire could soon approach or exceed $200,000 in government fees alone, before legal, relocation, or salary costs are counted.

The proposal lands in a year when immigration fee policy has already become one of the most consequential — and most litigated — levers the administration has used to reshape legal immigration without relying on Congress. Where earlier administrations adjusted H-1B policy mainly through lottery mechanics, site-visit enforcement, and adjudication standards, 2025 and 2026 have been defined instead by the size of the fees themselves, turning cost into the primary policy instrument. That shift matters for employers because fee-based policy changes move faster than legislation and can be adjusted repeatedly, which is exactly what is happening now with a second attempt at a six-figure charge following the first one’s defeat in court.

What Is the New H-1B Fee, and Who Does It Apply To?

The proposed $103,265 fee applies to employers filing cap-subject H-1B petitions, including petitions filed under the 20,000-slot advanced-degree exemption that covers applicants with a U.S. master’s degree or higher.

DHS has framed the fee as necessary to “generate dedicated revenue to support the costs of administering the lawful immigration system,” according to the agency’s own proposal, which also cites cost-sharing across DHS, the Department of Justice, the Department of State, and the Department of Labor as the underlying justification. The rule was published on August 25, 2026, opening a 30-day public comment period that runs into late September.

Which petitions are exempt?

Petitions that fall outside the annual H-1B cap are exempt from the new fee. That generally includes petitions filed by U.S. institutions of higher education, nonprofit organizations affiliated with or operating alongside a university, and nonprofit or governmental research organizations — the same categories that have historically been excluded from annual cap counts.

Why Is This a Separate Fee From the $100,000 H-1B Proclamation?

This new fee is a distinct action because the original $100,000 charge, imposed by presidential proclamation in 2025, was vacated by a federal court in Massachusetts. Rather than appeal that ruling directly, the administration is now pursuing the same policy goal through a formal DHS rulemaking process instead of an executive proclamation.

That procedural distinction matters. A proclamation-based fee proved vulnerable to a court challenge on separation-of-powers and statutory-authority grounds. A fee introduced through notice-and-comment rulemaking under DHS’s own statutory fee-setting authority is a different legal animal, and it is the route immigration counsel had been expecting the administration to take after the earlier proclamation was struck down. Kurums covered that earlier court fight in our analysis of the original H-1B fee ruling; the new proposal effectively restarts that story on firmer procedural footing for the government, even as it raises the total dollar figure employers may eventually face.

Will the New H-1B Fee Face Legal Challenges?

Yes, immigration and employment attorneys widely expect litigation, though the legal theory will likely differ from the challenge that succeeded against the 2025 proclamation.

Caroline Tang, an immigration attorney at Ogletree Deakins, noted that “litigation against the rule could target the proposed fee amount itself as potentially arbitrary and capricious” — a standard administrative-law argument that requires challengers to show the agency failed to justify the size of the fee with reasoned analysis, rather than arguing DHS lacks any authority to charge a fee at all. That is a higher bar for challengers than the separation-of-powers argument that worked against the proclamation, because DHS does have general statutory authority to set immigration benefit fees; the fight this time will center on whether $103,265 is a defensible number tied to actual administrative costs, or a punitive figure dressed up as a cost-recovery measure.

How Should Employers Plan for the New H-1B Fee?

Employers with pending or planned cap-subject H-1B filings should budget for the possibility that both fees — the original $100,000 charge, if it survives further litigation or is reissued in a different form, and the new $103,265 proposal — could eventually stack, and should use the 30-day comment window to weigh in through counsel or trade associations before the rule is finalized.

Practically, HR and mobility teams have a short list of things to do before the comment period closes and any final rule takes effect:

• Model the worst-case cost. Build sponsorship budgets around a scenario where the new fee applies on top of any surviving version of the earlier $100,000 charge, rather than assuming only one fee will ultimately apply.
• Prioritize cap-exempt pathways where genuinely available. Petitions for university-affiliated or nonprofit research roles remain outside the fee’s scope, which may shift where certain research and academic-adjacent hires are structured.
• Revisit alternative visa categories. L-1 intracompany transfers, O-1 extraordinary-ability petitions, and TN status for Canadian and Mexican professionals are not cap-subject H-1B filings and are unaffected by this specific proposal, making them worth a fresh look for roles that could qualify under more than one category.
• Submit comments during the 30-day window. DHS is required to consider public comments before finalizing the rule, and employer associations are expected to file detailed cost-impact submissions; individual employer comments documenting concrete hiring impact can still carry weight in the administrative record.
• Watch for a parallel appeal or reissuance of the original fee. Because the $100,000 proclamation was vacated rather than simply withdrawn, the administration retains the option to appeal that ruling while this new rule moves through notice-and-comment, meaning employers could eventually face developments on both fronts at once.

For a broader view of how H-1B sponsorship fits into U.S. hiring strategy, see our 2026 U.S. work visa guide for expats and the employer compliance checklist for hiring foreign talent in the USA, both of which cover the I-9, LCA, and multi-state payroll obligations that apply regardless of which fee proposal ultimately survives.

How Could This Change H-1B Hiring Decisions Industry-Wide?

A fee approaching or exceeding six figures per hire changes the calculus for which roles are worth sponsoring, not just how many sponsorships a company can afford.

Historically, H-1B government filing fees were a comparatively minor line item next to salary and relocation costs, measured in the thousands of dollars rather than the hundreds of thousands. A fee structure that could stack two separate six-figure charges on a single petition reverses that math entirely, turning the fee itself into one of the largest costs associated with the hire. That is most consequential for mid-size employers and startups that sponsor a handful of H-1B workers a year and lack the budget flexibility that large technology and consulting firms — historically the heaviest users of the cap-subject H-1B lottery — can absorb more easily. Expect sponsorship decisions to concentrate further around roles seen as genuinely difficult to fill domestically, with employers more willing to walk away from borderline cases where a comparable U.S.-based candidate exists, even an imperfect one.

Could this push more hiring toward alternative visa categories or offshore roles?

It’s a reasonable expectation, though not yet a documented trend at this early stage. Employers facing a stacked six-figure H-1B cost are likely to lean harder on L-1 transfers for existing international staff, O-1 petitions for candidates who qualify, and remote or offshore hiring arrangements that avoid U.S. visa sponsorship entirely for roles where physical U.S. presence isn’t essential. None of those alternatives are drop-in replacements for the H-1B program’s scale, but each becomes comparatively more attractive every time the cost of the H-1B route itself increases.

Frequently Asked Questions

How much is the new proposed H-1B fee?

DHS has proposed a $103,265 fee for cap-subject H-1B petitions, published in the Federal Register on August 25, 2026, with a 30-day public comment period.

Does the new fee replace the $100,000 H-1B fee from 2025?

No. The new $103,265 fee is a separate proposal pursued through DHS rulemaking, distinct from the $100,000 fee imposed by presidential proclamation in 2025, which a federal court in Massachusetts vacated.

Which H-1B petitions are exempt from the new fee?

Petitions not subject to the annual H-1B cap are exempt, which generally includes petitions filed by U.S. higher education institutions and affiliated or governmental nonprofit research organizations.

Is the new H-1B fee final?

No. It is currently a proposed rule open for public comment for 30 days from its August 25, 2026 publication date. DHS must review comments before issuing a final rule, and legal challenges are widely expected once it is finalized.

What legal argument is most likely to be used against the new fee?

Immigration attorneys, including Caroline Tang of Ogletree Deakins, have suggested the fee amount itself could be challenged as arbitrary and capricious under administrative law, rather than on the separation-of-powers grounds that succeeded against the earlier proclamation-based fee.