$103,265 H-1B Fee Takes Effect While $100,000 Fee Remains Blocked by Court
DHS has proposed a new $103,265 fee for cap-subject H-1B petitions after a federal court struck down the earlier $100,000 charge. The new proposal is not yet effective and must go through a public-comment and final-rule process before employers would be required to pay it.
If employers had been withering for a year over having to shell out $100,000 each for each H-1B worker they hire, now they have got a fresh amount to learn. It's higher, it does not operate the same, and it is not entangled in the same court battle.
DHS filed a fee for formal publication this week. Before jumping the numbers one point should be clarified: This fee is not being received yet. This is not a rule, it's a proposed rule; it does not owe anything during the public comment period.
The answer to that question means you need to unravel two distinct H-1B costs, both on different paths, a completely different set of laws, at the same time.
What DHS Is Proposing?
The $103,265 fee proposal was published by DHS in the Federal Register on Aug. 25 and will allow for 30 days' public comment. Those comments will be considered by the department before deciding whether to finalize a rule; the amount or other information may still be modified prior to that.
The fee would be paid on each H-1B petition which meets the annual H-1B quota (20,000 of which are reserved for those who hold a U.S. Master's degree or equivalent) if it is finalized as drafted.
The cost of cap-exempt filings, primarily by universities and affiliated nonprofits, would not be levied. The fee would be in addition to current H-1B filing fees, not a substitute for the same.
Why The Earlier $100,000 Fee Is Still Blocked?
In June 2026, the U.S. District Court for the District of Massachusetts invalidated the guidance imposing the fee in another case, California et al. v. Mullin. The court said the payment was considered a tax the President didn't have the authority to impose and that it lacked proper rulemaking procedures.
The government appealed to the First Circuit, which rejected a stay of the ruling in July under which the fee was not being collected as the appeal proceeded.
In a separate case before another court in Washington, D.C., the answer was different on a similar issue, resulting in a split which could ultimately be resolved by appeal.
The Timing That Makes It Complicated?
Now things get really tricky for employers who are trying to prepare in advance. Unless the administration extends or renews the proclamation, the $100,000 proclamation will expire on Sept. 21, 2026. That's before news that the $103,265 rule could be more realistically finalized, currently in an open comment period.
Global Briefing
Get the week's most critical immigration news and policy analysis directly in your inbox.
DHS has said explicitly the two fees are based on different legal bases and in theory can be applied to the same petition. An employer's total filing cost could surpass $200,000, with the government's victory in appeal resulting in both payments to the government, as well as the payment to the employee.
Current filing fees for H-1B workers will not be affected by the proposed change, and the $100,000 proclamation fee will be frozen pending action resolution in the appeal.
What Employers Should Do During The Comment Period?
If your employer has an H-1B petition, or is in the process of filing one, then neither fee at the moment, but this doesn't mean that the next 30 days are not relevant. Business concerns raised by employers, industry groups or attorneys must be reviewed by DHS during the formal comment period before the rule is finalized.
The fee could affect smaller companies more than larger ones, potentially limiting their ability to recruit global talent. Companies should treat both the $103,265 proposal and its possible withdrawal as variable when estimated next year’s H-1B hiring costs.
Two Fees, Two Court Fights, One Uncertain Number
The employers that remain do not have one fee that they can plan for. There are two separate court cases, two different schedules and that’s the only thing they have in common for the next few weeks.
The $100,000 amount in the proclamation is tied to a lawsuit, one that was blocked, appealed and is independent of the outcome of that appeal. The $103,265 proposal is a story about the rulemaking process, not yet definitive, it is open for comment and can easily change in substance before it becomes final.
So finally, for H-1B petitioners, the price of a cap-subject petition is not final, until one or both of these processes are finalized. Depends on the next few months, but it's between the current amount of money needed to file and well over $200,000.
The information on this page is for general informational and educational purposes only. It does not constitute legal advice and should not be relied upon as such. Immigration laws and policies change frequently. Always consult a licensed immigration attorney or accredited representative before making any immigration decisions.
Last Updated: [August 2026] — This article reflects information available as of [August 2026]. Policies may have changed. Check USCIS.gov for the most current guidance.
