A newly proposed federal rule could transform the cost of participating in the annual H-1B cap process.
What has been proposed for H-1B petitions?
On August 25, 2026, the Department of Homeland Security (DHS) published a proposed rule that would impose a new $103,265 fee on H-1B cap-subject petitions, including petitions eligible for the advanced-degree exemption. The amount would be payable at filing and would be added to all other applicable fees or payments.
The proposal is not yet a final rule. Though, the public-comment period closed on September 24, 2026. Employers should therefore distinguish between a proposal that may materially affect future filings and a fee that is already due today.
Which H-1B petitions would be covered?
As drafted, the fee would apply to cap-subject H-1B petitions, including cases counted under the advanced-degree exemption. DHS specifically distinguishes these filings from cap-exempt petitions.
That distinction matters for
- universities,
- affiliated nonprofit entities,
- nonprofit and governmental research organizations, as well as for
- workers who have already been counted against the cap.
Whether a particular filing is cap-subject must be analyzed from the petition history and the petitioner’s status.
Potential impact on H-1B employers
If finalized in its proposed form, the fee would dramatically change the economics of H-1B cap sponsorship. Employers would need to evaluate the cost before registration and recruitment decisions, not only after a beneficiary is selected.
The proposal may have a disproportionate effect on smaller employers, start-ups and organizations sponsoring several cap-subject workers. It may also increase the importance of considering other classifications, but an alternative category should be used only when its independent legal requirements are genuinely met.
What employers should do now
- Do not add the proposed fee to a current filing unless USCIS announces that a final rule has taken effect.
- Identify which planned petitions are truly cap-subject and which may be cap-exempt.
- Model the financial effect on 2027 hiring and sponsorship plans.
- Monitor the rulemaking and any final effective date, transition rule or litigation.
- Avoid assuming that an O-1, L-1, E or other category is automatically available as a substitute.
Adivce on H-1B petitions by U.S. attorneys
The $103,265 H-1B fee is a proposed rule, not yet a filing requirement. Its scope is nevertheless significant enough that employers planning future cap cases should follow the rulemaking closely and revisit immigration budgets and workforce strategy. For questions regarding your case, please contact our U.S. Desk at WINHELLER any time.
Kari Foss-Persson
U.S. Attorney at Law (MN, USA) specialized in U.S. immigration and visa law
Over 10 years of experience in U.S. immigration law; Kari personally guides individuals and businesses through the entire visa process – in German and English.
