The Department of Homeland Security has released a proposed rule that would impose a new $103,265 fee on every H-1B cap-subject petition, payable when the petition is filed and in addition to all other fees an employer already pays. The rule is scheduled to publish in the Federal Register on August 25, 2026, and is open to public comment before it could take effect. Here is a plain-language look at what it says and what it does not.

What the proposal would do.

The rule would create a new, standalone fee of $103,265 that applies to H-1B cap-subject petitions. Two features are worth emphasizing. First, it would reach petitions filed under the advanced degree exemption, meaning the higher fee would apply even to cases for workers with a U.S. master's degree or higher. Second, it is described as an additional fee, layered on top of the ordinary H-1B filing fees rather than replacing them. DHS frames the fee as a way to recover a portion of the government's costs of running the immigration system across several agencies.

Who it would and would not reach.

By its terms, the fee is aimed at cap-subject petitions, which are the petitions that must compete for one of the limited number of new H-1B slots each year. Petitions that are cap-exempt, such as many filed by institutions of higher education and certain nonprofit and research organizations, would not be covered. Employers should confirm whether a given petition is cap-subject or cap-exempt, because that distinction would decide whether this fee applies at all.

One question that comes up immediately is whether filing for a change of status, rather than processing at a consulate abroad, would avoid the fee. Based on the proposal as written, it would not appear to. The rule applies to all cap-subject petitions and does not include any carve-out for change-of-status filings or any distinction based on whether the worker is overseas or already in the United States. On that reading, a cap-subject petition requesting a change of status for someone already here, a frequent situation for an F-1 student on Optional Practical Training who is selected in the lottery, would still owe the fee. This is a notable contrast with the $100,000 proclamation fee, which turned largely on consular processing and generally did not reach change-of-status filings. Employers should also note that filings which are not new cap cases, such as extensions, amendments, and changes of employer for a worker already counted against the cap, would generally fall outside this proposed fee. Because the rule does not address these scenarios expressly, USCIS could clarify the edges in a final rule or in guidance.

This is a proposal, not a final rule.

It is important not to treat this as a cost that applies today. The rule is a Notice of Proposed Rulemaking, which means it must go through a public comment period, reported as 30 days from the date of publication, before DHS can issue a final rule. The amount, the scope, and the timing could all change during that process, and rules of this kind are frequently challenged in court. Employers and workers should plan for the possibility of a large new fee while understanding that nothing is owed unless and until a final rule takes effect.

How this differs from the $100,000 proclamation fee.

Many people will understandably confuse this with the $100,000 H-1B fee that came out of a presidential proclamation last year. They are not the same. The $100,000 fee was imposed by proclamation and is currently blocked in court, so it is not being collected at this time. This new $103,265 charge is a separate DHS rule built on a different legal basis. If both measures were ever in effect at once, a covered petitioner could in principle owe both, but the proposed rule itself observes that the proclamation is set to expire before this new fee would take effect, unless the proclamation is extended. The practical takeaway is that these are two distinct developments moving on two different tracks, and each has to be watched on its own.

What to do with this information.

For any employer that depends on the H-1B cap, a six-figure per-petition fee would be a major change, so this is worth factoring into hiring and budget planning now, even though it is not yet final. There is also an opportunity to submit comments during the rulemaking for those who wish to be heard.

This article is general information, not legal advice, and does not create an attorney-client relationship.