August 24, 2026
On August 24, 2026, the Department of Homeland Security released a Notice of Proposed Rulemaking (NPRM) that, if finalized, would add a new, separate fee of $103,265 to most H1B cap (lottery) petitions on top of all existing filing fees for H1B petitions counted against the annual cap — both the regular 65,000-visa cap and the 20,000-visa exemption for workers with advanced U.S. degrees.
The NPRM is scheduled to be published in the Federal Register on August 25, 2026. Before it can take effect, the public may weigh in, and USCIS must consider those comments. The window to submit comments is 30 days from the publication date.
The sole change proposed is the addition of one regulatory subsection to 8 CFR Part 106, which would read:
The following additional fee is required for all H1B cap-subject petitions, including those eligible for the advanced degree exemption under section 214(g)(5)(C) of the Act: $103,265.
Key takeaways from the rest of the NPRM include:
- The fee would be $103,265 per petition. That is a new line item, not an increase to the existing H1B filing fee.
- It would apply only to cap-subject petitions. Cap-exempt employers such as universities, related nonprofits, or government research organizations would not owe this fee.
- As with all other H1B fees, the employer, not the worker, is responsible for paying it.
This is a different fee from the $100,000 payment created by last September’s Presidential Proclamation, which we covered in our earlier news posts (the “Proclamation fee”). Generally speaking, the Proclamation fee was imposed mostly on new H1B workers coming from abroad. This new proposed fee would apply more broadly to cap-subject petitions regardless of where the worker is located—either abroad or within the United States.
The NPRM notes that if the Proclamation fee is still in place, or is renewed, by the time this new fee takes effect, an employer may owe both amounts on the same petition. As our July 2026 update reported, however, actions by the federal courts mean that the Proclamation fee is not currently in effect. (Further intervention by the federal courts could resurrect the Proclamation fee; we are monitoring the situation and will report updates here.)
For the moment, employers should note that this is a proposed rule, not a final rule. No petitioner owes the $103,265 fee today. If the proposed rule is finalized, it would significantly raise the cost of sponsoring H1B workers for cap-subject petitions in April 2027. As with the Proclamation fee, litigation challenging this new fee is expected should the rule become final.
We are tracking this rulemaking closely, alongside the ongoing litigation over the earlier $100,000 fee, and will post updates as both develop.
Disclaimer: This information is not intended as legal advice in any specific case. The facts of a specific case may render the information inapplicable. Changes are rapidly evolving and may not be immediately posted here.
Chris Beckerson © Jewell Stewart Pratt Beckerson & Carr PC 2026
