Citizeo
Briefing

U.S. DHS Proposes a $103,265 Fee for Cap-Subject H-1B Petitions

Briefing summary

  • The Department of Homeland Security has proposed an additional USD $103,265 fee for every cap-subject H-1B petition.
  • The proposal includes petitions under the U.S. advanced-degree exemption but excludes cap-exempt H-1B petitions.
  • The petitioning employer, not the prospective worker, would pay the proposed fee when filing the petition.
  • It would be charged in addition to the ordinary H-1B filing fees.
  • This is a proposed rule. It is not part of the current USCIS fee schedule unless DHS publishes an effective final rule.

The proposed amount for the U.S. H-1B specialty-occupation pathway is unusually large, but its procedural status is just as important as the number. DHS published a notice of proposed rulemaking on 25 August 2026. The notice opens a 30-day public-comment period and does not itself impose the fee.

Which H-1B cases would be affected

The proposed fee applies to cap-subject petitions. These are petitions using the annual H-1B numerical allocation, including the regular cap and the additional allocation for qualifying U.S. advanced-degree graduates.

The proposal expressly excludes cap-exempt H-1B petitions. A petition may be cap-exempt because of the type of employer or employment, such as qualifying higher-education and research cases, or because the beneficiary has already been counted against the cap and remains eligible for cap-exempt treatment. Whether a particular filing is cap-subject is therefore critical.

DHS proposes to collect the fee when the employer files the cap-subject petition after a valid registration is selected. It is not a registration fee and would not be paid simply to enter the annual selection process.

The proposal is separate from the $100,000 proclamation payment

The rulemaking discusses a different USD $100,000 payment associated with Presidential Proclamation 10973. DHS says the new USD $103,265 regulatory fee would rest on different legal authority and would be separate from that payment.

The proclamation payment has also been the subject of federal litigation, and the proclamation was scheduled to expire unless extended. Those developments do not automatically dispose of the new rulemaking. Conversely, the publication of this proposed rule does not revive, extend or resolve the separate proclamation payment.

Applicants and employers should avoid treating the two amounts as interchangeable. Any future filing needs to be tested against the rules, court orders and fee schedule actually applicable on its filing date.

What happens next

DHS must accept and consider public comments before issuing a final rule. It could retain the proposed amount, revise the amount or coverage, decline to finalize the rule, or publish a final rule that is later challenged.

A final rule would need to state when the fee takes effect and which filings are covered. Until that happens, employers should use USCIS's live fee schedule and should not send the proposed amount with a current petition.

Because the proposal would materially change the economics of cap sponsorship, employers planning a future cap filing may want to model the possible cost. That planning should remain conditional: selection in the cap process, a qualifying job and worker, a certified labor condition application, the existing filing fees and USCIS approval would all remain separate requirements.

What Citizeo is watching

Citizeo will monitor:

  1. the close of the public-comment period;
  2. any correction or supplemental proposal;
  3. a final rule, including its amount, scope and effective date;
  4. updated USCIS filing and fee instructions; and
  5. related litigation or legislation that affects implementation.

Sources