MW Law LLC | Immigration Law for Businesses, Professionals, and Families — Chicago, Illinois
Current as of September 13, 2026.
The Department of Homeland Security has proposed a $103,265 fee on H-1B cap-subject petitions, payable at the time of filing. The proposal was published at 91 FR 54817 on August 25, 2026. It is a notice of proposed rulemaking rather than a rule in force, the comment period closes on September 24, 2026, and DHS has proposed no effective date. Employers planning for the FY 2027 cap season are working from a proposal, not a requirement.
Is the $103,265 H-1B fee in effect right now?
No. The fee exists in a notice of proposed rulemaking published on August 25, 2026. Nothing is owed under it, and no petition filed today carries the charge. A final rule would have to follow review of the public comments before any fee could be collected.
DHS proposes to add the fee at 8 CFR 106.2(a)(3)(xii), a standalone provision separate from the existing H-1B petition fee. The agency states its authority under section 286(m) of the Immigration and Nationality Act, which permits fees set to recover the full costs of providing adjudication and naturalization services.
Which H-1B petitions would the proposed fee apply to?
Cap-subject petitions, including those eligible for the advanced degree exemption. DHS proposes not to require the fee with a petition for a cap-exempt H-1B nonimmigrant, reasoning that many cap-exempt workers are employed by nonprofit research organizations, governmental research organizations, and educational institutions.
The distinction is the cap rather than the worker’s location. A petition for someone already in the United States falls within the proposal if it is cap-subject. The proposed rule assumes an annual volume of 85,000 cap-subject petitions and projects roughly $8.8 billion in yearly revenue, allocated across USCIS, ICE, CBP, the Executive Office for Immigration Review, the Department of State, and the Department of Labor.
Would the proposed fee replace the payment required under the Presidential Proclamation?
No. The rule states that the proposed fee would apply in addition to any other applicable fees or payments, including any separate payment obligation required under a Presidential Proclamation, and that a petitioner subject to both would be required to pay both amounts.
Much of the coverage of this proposal treats the two as versions of the same charge. They are separate instruments resting on different legal authority, and the proclamation payment is the subject of ongoing litigation that this rulemaking does not resolve. An employer modeling cost for the next H-1B cap season is looking at two possible obligations rather than a choice between them.
How can an employer comment before September 24, 2026?
Comments go through the Federal eRulemaking Portal under DHS Docket No. USCIS-2026-0298. The electronic docket accepts submissions until midnight eastern time at the end of September 24, 2026. More than 8,500 comments had been received as of September 13, 2026.
DHS states that the comments most useful to the agency reference a specific portion of the rule, explain the reason for a recommended change, and include supporting data or authority. Comments sent by email or letter to DHS officials are not treated as comments on the rule. The docket is open to the public, and the proposal sits alongside other pending changes affecting employers that sponsor workers.
MW Law LLC: Planning Around a Proposal
Our practice includes:
- H-1B Specialty Occupation Visa for Professionals — Registration, cap-subject and cap-exempt petitions, extensions, and transfers
- I-9 and Corporate Immigration Compliance — Audits, internal reviews, and worksite compliance for employers
Have a question about your situation? Book a consultation with attorney Michelle Weltz.
Frequently Asked Questions
What legal authority does DHS cite for the proposed fee?
DHS cites sections 286(j), (m), and (n) of the Immigration and Nationality Act, 8 U.S.C. 1356. Section 286(m) authorizes fees set at a level that ensures recovery of the full costs of providing adjudication and naturalization services, including services provided without charge.
Does the proposed fee apply to the registration or to the petition?
The proposal places the fee on the petition, payable at the time of filing. Cap-subject petitioners register electronically before filing, and a petition may be filed only on a valid, selected registration. The proposed fee attaches at the petition stage.
Was the proposed rule corrected after publication?
Yes. A correction document was published on September 10, 2026 revising Table 13, which appears at pages 54834 and 54835 of the proposed rule. Anyone citing the cost tables should work from the corrected version.
Which employers would fall outside the proposed fee?
DHS proposes to exclude cap-exempt petitions. That category generally covers institutions of higher education, affiliated nonprofit entities, nonprofit and governmental research organizations, and petitions for workers already counted against the cap.
When would the fee take effect if it is finalized?
The proposal does not set an effective date. DHS would review the comments, publish a final rule, and state an effective date at that point. Until a final rule is published, no fee is owed under this proposal.
About the Author
Michelle Weltz is the founder of MW Law LLC, a boutique immigration firm at 680 N Lake Shore Drive in Chicago. She is a 2024-2025 Lawyers of Distinction honoree and a multi-state licensed immigration attorney serving multinational corporations, high-growth startups, and individual entrepreneurs establishing a U.S. presence.
Every client works directly with Michelle, who leads all strategy, filings, and communications. She volunteers with Centro Romero, a Chicago nonprofit serving immigrant and refugee communities. Learn more about Michelle Weltz and MW Law’s approach. Contact her at contact@mwlawllc.com or (312) 909-8253.
Sources
Fee for Certain H-1B Petitions, 91 FR 54817 (Aug. 25, 2026) (notice of proposed rulemaking; CIS No. 2861-26; DHS Docket No. USCIS-2026-0298; RIN 1615-AD20); Fee for Certain H-1B Petitions, correction, FR Doc. C1-2026-17324 (Sept. 10, 2026); 8 CFR part 106; proposed 8 CFR 106.2(a)(3)(xii); INA secs. 286(j), (m), (n), 8 U.S.C. 1356(j), (m), (n); INA sec. 214(g), 8 U.S.C. 1184(g); Regulations.gov, Docket No. USCIS-2026-0298.
This article is general information about U.S. immigration law and is not legal advice. Immigration law and policy change frequently — this article is current as of the date shown and may not reflect later developments. Reading it does not create an attorney-client relationship. Consult a licensed immigration attorney about your specific situation.