The New $103,265 H-1B Fee: What DHS's Proposed Rule Actually Says

DHS just proposed a $103,265 fee on cap-subject H-1B petitions - here is what the rule actually says, who is exempt, and what happens next.

If you are tracking H-1B costs while you search for a sponsor, here is the status as of 2026-09-12: DHS published a proposed rule in the Federal Register on 2026-08-25 that would charge $103,265 on every cap-subject H-1B petition at the time of filing. It is not law. It is not being collected. It is a proposal, open for public comment through 2026-09-24, and it could be revised, delayed, or withdrawn before it ever takes effect. This is different from the $100,000 fee you may have heard about earlier this year, which came from a presidential proclamation and was struck down by a federal court. Below is what the new rule says, who it would hit, and how it differs from what came before.

What DHS actually proposed

The document is a Notice of Proposed Rulemaking (NPRM), identified by Regulatory Identification Number RIN 1615-AD20, published in the Federal Register on 2026-08-25. Unlike the earlier $100,000 restriction, which the White House imposed through a presidential proclamation, this fee is proposed under DHS's own fee-setting authority in section 286 of the Immigration and Nationality Act (INA). That distinction matters because it changes the legal basis a court would review if the rule is challenged later, and it means the rulemaking follows the standard notice-and-comment process rather than executive action.

The core of the proposal:

• A fee of $103,265 would apply to every cap-subject H-1B petition.
• The fee would be payable at the time of filing, alongside existing USCIS filing fees.
• Cap-exempt petitioners are carved out entirely (more on this below).
• The rule remains a proposal. DHS must review public comments before it can issue a final rule, and the effective date of any final rule has not been announced.

Nothing here changes the existing H-1B lottery mechanics, the specialty-occupation standard, or the Labor Condition Application (LCA) process that runs through the Department of Labor. This is a fee proposal layered on top of the existing petition, not a redesign of how H-1B petitions are adjudicated.

Why this rule exists: the $100,000 fee it is meant to replace

To understand why DHS is proposing this now, you need the history of the fee it is standing in for.

Earlier in 2026, a presidential proclamation attempted to impose a $100,000 fee on new H-1B petitions. A federal court in Massachusetts vacated that proclamation on 2026-06-08, and when the government asked the First Circuit Court of Appeals to pause that ruling while it appealed, the First Circuit denied the stay on 2026-07-24. That means the $100,000 proclamation fee is not being collected and has not been collected since the vacatur. Separately, the proclamation's underlying entry restriction is set to sunset on 2026-09-20 regardless of the litigation. For a full accounting of that fight, see is the $100k H-1B fee still in effect.

DHS's response was not to appeal harder. It was to go around the proclamation entirely and propose essentially the same cost through ordinary agency rulemaking, which is generally on firmer legal footing than a proclamation because it follows the Administrative Procedure Act's notice-and-comment requirements. That is why the $103,265 proposal is, in practical terms, the more durable story to watch, even though the number is not identical to $100,000.

Who this would actually apply to

The proposed fee is scoped narrowly to cap-subject petitions, meaning petitions counted against the annual H-1B numerical cap through the lottery. If finalized as written, the rule would exempt:

• Universities filing their own H-1B petitions
• Nonprofit entities affiliated with a university
• Nonprofit research organizations
• Governmental research organizations

These are the same categories that already sit outside the annual cap for other H-1B purposes. If you want the full landscape of who counts as cap-exempt today, the complete H-1B fee breakdown walks through each category and how it interacts with existing filing fees, the fraud prevention fee, and the ACWIA training fee.

For everyone else, meaning most private-sector employers filing a lottery-selected petition, the proposed $103,265 would come on top of the fees that already exist today: the base I-129 filing fee, the anti-fraud fee, the ACWIA fee where applicable, and premium processing if the employer elects it, all listed on USCIS's official fee schedule (Form G-1055). None of those existing fees are changed by this proposal. If you want to see how the fee stack looked before this proposal, how H-1B fees compare across the old rules and any new ones is a useful side-by-side.

Timeline: where things actually stand

Here is the sequence in order, so you can see exactly what is settled and what is not:

1. 2026-06-08 - A Massachusetts federal court vacates the presidential proclamation behind the $100,000 H-1B fee.
2. 2026-07-24 - The First Circuit denies the government's request to stay that vacatur. The $100,000 fee remains uncollectible.
3. 2026-08-25 - DHS publishes the proposed $103,265 fee rule (RIN 1615-AD20) in the Federal Register, this time under its own fee-setting authority rather than a proclamation.
4. 2026-09-20 - The entry restriction tied to the original proclamation is scheduled to sunset on its own terms, independent of the litigation.
5. 2026-09-24 - The public comment period on the $103,265 proposal closes.
6. After 2026-09-24 - DHS reviews comments and may issue a final rule with its own effective date. No final rule or effective date exists as of this writing.

Notice what is missing from that list: a final rule, an effective date, or a court ruling on the new fee itself. If you see a headline or a forum post stating the $103,265 fee "is now required," check the date on it against 2026-09-24 and beyond, because comments are still open.

What to do while the rule is pending

There is a real, if narrow, set of actions worth taking right now:

1. Read the actual Federal Register notice rather than a summary of it, especially if an employer is citing it to you as a reason to delay or change a hiring decision.
2. Submit a comment if you want to - individuals, not just employers or advocacy groups, can submit comments referencing RIN 1615-AD20 through the Federal Register's public comment portal before 2026-09-24.
3. Ask any prospective employer directly how they plan to handle H-1B costs if the rule is finalized, rather than assuming either outcome.
4. Keep your OPT or STEM OPT timeline moving on its own track. This fee proposal has no bearing on your unemployment-day count or your STEM OPT reporting obligations.
5. Check back after 2026-09-24 for whether DHS issues a final rule, and if it does, what effective date it sets. A proposed rule can be finalized largely unchanged, revised significantly, or not finalized at all.

For the broader picture of which 2026 H-1B executive actions are actually in force versus proposed or blocked, this rundown of H-1B executive orders and proclamations is worth bookmarking alongside this post, since it gets updated as each item's status changes.

Common mistakes

• Treating the $103,265 figure as already owed. It is a proposed number in a rule that has not been finalized. No cap-subject petition is required to pay it as of 2026-09-12.
• Confusing this rule with the $100,000 proclamation fee. They come from different legal authorities, have different current statuses, and are not the same dollar amount. Saying "the $100,000 fee is now $103,265" collapses two separate stories into one and gets the legal posture wrong.
• Assuming the comment period means nothing will happen. A comment period is not a formality that guarantees a friendlier final rule, and it is not a guarantee the rule dies either. Read the H-1B transfer playbook if you are mid-transfer and want to understand which fee questions actually affect your timeline versus which ones don't.
• Assuming this changes who pays existing H-1B fees today. The rules on who pays H-1B fees that exist independent of this proposal, such as the base filing fee and ACWIA fee, are unaffected by this proposed rule.
• Skipping your DSO or attorney because "it's just a proposal." If you are weighing an offer, a transfer, or a school transition around this news, a licensed immigration attorney can tell you how a specific employer's situation might be affected if the rule finalizes; your DSO is the right person for anything touching your F-1 status, SEVIS record, or OPT/STEM OPT compliance. Neither of us at F1Jobs can tell you whether your specific case is affected, and no one should promise you that.

Frequently asked questions

Is the $103,265 H-1B fee in effect right now? No. As of 2026-09-12 it is a proposed rule DHS published in the Federal Register on 2026-08-25. It has not been finalized, and the public comment period runs through 2026-09-24. Nothing is being collected under this specific rule yet.

Does the $103,265 fee replace the $100,000 H-1B fee? It is meant to. The earlier $100,000 fee came from a presidential proclamation and was vacated by a federal court in Massachusetts on 2026-06-08, with the First Circuit denying a stay on 2026-07-24. DHS is now trying to reach a similar dollar figure through its own rulemaking authority under INA section 286 instead of a proclamation.

Who would be exempt from the new fee? Under the proposed rule, cap-exempt petitioners are excluded, including universities, their affiliated nonprofit entities, and nonprofit or governmental research organizations. Ordinary cap-subject private-sector employers filing lottery-selected petitions would not be exempt.

Do I need to pay this fee if I am on OPT or STEM OPT applying to jobs now? Not directly. The fee attaches to the H-1B petition an employer files, not to your OPT or STEM OPT work authorization. It could still affect whether an employer chooses to file a cap-subject petition on your behalf, so ask any employer discussing H-1B sponsorship how they plan to handle it.

How can I comment on the proposed rule? DHS proposed rules go through a public comment process on the Federal Register, open through 2026-09-24 for this rule. Anyone, including individuals, can submit a comment referencing the rule's RIN, 1615-AD20, through the Federal Register's official comment portal.

Rules like this one move fast and change without warning, and your own filings and notices govern over anything published here. If you want help thinking through how a shifting H-1B cost picture fits into your job search and sponsorship strategy, reach out to F1Jobs and we'll help you build a plan around what's actually confirmed, not what's still being argued in a comment docket.