On 25 August 2026, the Department of Homeland Security published in the Federal Register, under number 91 FR 54817, a proposal to charge US$ 103,265 for every H-1B petition competing for the annual limit, including those in the set-aside of 20,000 places for holders of a U.S. master's degree or higher. The fee would be paid on filing and added to all the others.
Where this figure comes from
The story starts earlier. In September 2025, Presidential Proclamation 10973 conditioned certain H-1B petitions on a payment of US$ 100,000, resting on the presidential powers to restrict the entry of foreign nationals. On 8 June 2026, a federal court in Massachusetts struck down the guidance implementing that payment, in California v. Mullin. The Government appealed on 11 June, and the appeal is still pending.
The new proposal takes a different legal route. Instead of the power to restrict entry, it invokes the fee-setting power in section 286(m) of the immigration statute, which allows the Government to charge enough to recover the full cost of the services it provides. The Government itself notes that, if the proclamation and the fee end up applying at the same time, both amounts would be due, and observes that the proclamation, unless extended, expires before the fee could take effect.
What exactly is proposed
The proposal would add a new item to the USCIS fee schedule, of US$ 103,265, for every H-1B petition subject to the annual limit. The figure is not round by chance: the Government added up US$ 8,777,488,035 in annual costs it wants to recover, divided by the projected volume of 85,000 petitions, and rounded the result, US$ 103,264.57, to the nearest multiple of five.
Left out are petitions that do not compete for the annual limit: those from universities and affiliated nonprofits, those from nonprofit or governmental research organizations, and extensions and changes of employer for workers already counted against the limit in an earlier year. But within the limit there is no exception at all: a small company and a nonprofit would pay the same amount. The Government's own analysis estimates a significant economic impact on 11,051 small entities, which is 76% of the small entities that filed petitions subject to the limit in fiscal year 2025.
Where the money would go
The legal novelty in the proposal is not the amount: it is the destination. For the first time, the Government proposes using the fee from one type of petition to fund not only the agency that decides it, but five other federal structures in the immigration system. The projected US$ 8.8 billion a year would be split as follows:
| Who receives it | How much a year | For what |
|---|---|---|
| USCIS, which decides the petitions | US$ 3.000 billion (34.2%) | Covering what current fees do not, and absorbing costs from the premium processing account. |
| Immigration courts (EOIR) | US$ 2.957 billion (33.7%) | 8,400 new posts, judges and support staff, plus infrastructure. |
| Department of Labor | US$ 1.210 billion (13.8%) | Labor certification (PERM, LCA, prevailing wage) and labour enforcement. |
| ICE | US$ 1.050 billion (11.9%) | Background checks on applicants and the foreign student program. |
| State Department | US$ 484 million (5.5%) | Consular checks, fraud prevention and refugee program costs. |
| Customs and border (CBP) | US$ 76.2 million (0.9%) | Biometric entry and exit system. |
The basis is a broad reading of items (m) and (n) of section 286: if the statute requires recovering the full cost of services and allows reimbursing public funds spent on them, the Government takes the view that it may charge one group of employers for costs generated by other agencies. The proposal itself admits that the cost of one program has never before been transferred directly to another on the basis of the ability to pay of a specific group, and that many employers will object to funding programs they have no relationship with.
The justification offered is ability to pay. The Government cites the median pay of US$ 133,000 for H-1B beneficiaries approved in fiscal year 2025 and a recent economic study to argue that demand for the 85,000 places would not fall below the limit even with a fee above US$ 100,000.
What to watch from here
- The calendar. The comment period ends on 24 September 2026, and only then can a final rule issue. The proposal does not say when the fee would take effect or which lottery season would be the first affected, and asserting that today would be guesswork.
- The courts. The proposal is born in the shadow of the case about the proclamation's US$ 100,000 payment, still pending on appeal, and the broad reading of section 286(m) is likely to be challenged if the rule issues as drafted.
- Your planning. For companies and professionals considering H-1B, the mere existence of the proposal is already a risk to factor in, alongside the alternatives that do not compete for the annual limit and would fall outside the fee.
Sources
- DHS and USCIS, Fee for Certain H-1B Petitions, proposed rule, 91 FR 54817, 25 August 2026, Docket USCIS-2026-0298, RIN 1615-AD20. Comments to 24 September 2026, at regulations.gov.
- Presidential Proclamation 10973, Restriction on Entry of Certain Nonimmigrant Workers, 90 FR 46027, 19 September 2025.
- California v. Mullin, No. 25-13829 (D. Mass.), decision of 8 June 2026 striking down the guidance implementing the payment; appeal pending in the First Circuit, as reported by the Government in the proposal.
- Immigration statute, section 286(m) and (n), 8 U.S.C. § 1356(m) and (n), and section 214(g), 8 U.S.C. § 1184(g).
Updated 29 August 2026. This text discusses a proposed rule, which may be changed, dropped or, if adopted, suspended by a court.