Your H-1B budget for next cap season just changed by six figures, and the rule that did it is only a proposal — for another twenty-eight days. On August 25, 2026, DHS published a notice of proposed rulemaking that would add a $103,265 fee to every cap-subject H-1B petition, on top of every fee you already pay. Comments close September 24, 2026.

Here is what the rule actually says, what it does not say, and why this is the second time in a year the government has tried to put a six-figure price on an H-1B.

What the proposed rule does

The document is Fee for Certain H-1B Petitions, DHS Docket No. USCIS-2026-0298, CIS No. 2861-26, RIN 1615-AD20, published in the Federal Register on August 25, 2026 (Doc. No. 2026-17324). It proposes a new 8 C.F.R. § 106.2(a)(3)(xii).

The mechanics:

The amount is $103,265 per petition. Not per beneficiary per year. Per petition, at filing.
It reaches all cap-subject petitions, including the advanced degree exemption. The master’s cap is not carved out. INA § 214(g)(5)(C).
It does not reach cap-exempt petitioners. Universities, affiliated nonprofits, nonprofit and governmental research organizations under INA § 214(g)(5)(A)–(B) are outside the proposed rule. So are extensions, amendments, and change-of-employer petitions for workers already counted against the cap.
It is due with the Form I-129, not at registration. You register in March, you find out whether you were selected, and the fee attaches only to the petition you file after selection. The $215 registration fee is unchanged.
It stacks. The rule states the fee would be imposed in addition to all 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.”

DHS invokes INA § 286(m), (n), and (j) [8 U.S.C. § 1356], INA § 214(a)(1) and (c)(1) [8 U.S.C. § 1184], and Homeland Security Act §§ 402 and 451 [6 U.S.C. §§ 202, 271].

Where the money goes, and why that matters legally

This is the part most coverage will skip, and it is the part that will decide the litigation.

DHS builds the $103,265 figure from roughly $7.1 billion in annual costs across six agencies — approximately $3.0 billion for USCIS, $2.96 billion for EOIR, $1.05 billion for ICE, $76.2 million for CBP, plus State Department and Labor Department costs. In other words, an employer sponsoring a software engineer would be funding the immigration courts and the detention system.

Read INA § 286(m) against that. The statute authorizes fees “for providing adjudication and naturalization services” set “at a level that will ensure recovery of the full costs of providing all such services.” Immigration court operations at EOIR are not USCIS adjudication services. ICE enforcement is not an adjudication service. The gap between what § 286(m) authorizes and what this rule proposes to recover is the whole case, and every comment filed by an employer group between now and September 24 will be building that record.

I am not telling you how a court comes out on that. I am telling you where the fight is, because the government has already lost this money once.

The first attempt, and where it stands today

On September 19, 2025, the President issued Proclamation 10973, Restriction on Entry of Certain Nonimmigrant Workers, 90 Fed. Reg. 46027 (Sept. 24, 2025), conditioning entry of certain H-1B workers on a $100,000 payment.

That proclamation was challenged in the District of Massachusetts. In State of California v. Noem, No. 1:25-cv-13829 (D. Mass.), the court held on June 8, 2026 that the payment was an unlawful exercise of executive power — a tax by another name — and vacated it. The government appealed, and the case is now pending in the First Circuit as State of California v. Mullin, No. 26-1699. On July 24, 2026, the First Circuit denied the government’s motion for a stay pending appeal, reasoning that Congress had not clearly authorized the Executive Branch to impose a $100,000 H-1B fee.

So the practical status, as of today: neither USCIS nor the Department of State is collecting the $100,000 payment. If a vendor, a consultant, or a panicked LinkedIn post tells you otherwise, they are describing the world as it stood before June 8.

Now put the two together. The Executive tried this through the proclamation power and lost. Eleven weeks after that vacatur — and one month after the First Circuit declined to pause it — DHS is going after the same money through notice-and-comment rulemaking under a cost-recovery statute, and asking for $3,265 more. That is not a coincidence and nobody at DHS is pretending it is. The rule expressly contemplates a petitioner owing both.

The timeline that actually governs you

September 24, 2026 — comments close. Electronic submission through regulations.gov only; no mailed or hand-delivered comments.
After that — DHS must review and respond to significant comments before issuing a final rule. On a rule of this size, drawing the volume of comment this one will draw, months is the realistic range, not weeks.
A final rule takes effect on the date the final rule sets, and it applies to petitions filed on or after that date. A proposed rule imposes nothing on anyone.

Which means the earliest realistic exposure is the FY2028 cap season — registration in March 2027, petitions filed from April 1, 2027. If you are filing an H-1B cap petition this week, this rule does not touch it.

The mistakes I expect to see

Paying something because you read a headline. Nothing is owed under either the proclamation or this proposed rule right now. Do not let anyone collect a “compliance fee” from you on the strength of a Federal Register notice.

Assuming it hits at registration. It does not. The registration is still the cheap step. If your planning assumes $103,265 times every candidate you register, you have overstated your exposure by an order of magnitude — you only pay on selections.

Missing the comment window because you assume it is futile. It is not futile, and it is not symbolic. Notice-and-comment records are what the eventual APA challenge is litigated on. An employer that documents concrete cost and hiring consequences on the record is building the arbitrary-and-capricious argument that someone will use in court in 2027. Twenty-eight days.

Forgetting the cap-exempt path. If a role can legitimately sit with a qualifying institution — a university, an affiliated nonprofit, a nonprofit research organization — that is outside both the cap and this proposed fee. This is a real structural answer for some employers, not a loophole, and it has to be genuine to survive scrutiny.

Letting an H-1B worker’s status lapse while you wait for clarity. Extensions, amendments, and transfers for someone already counted against the cap are untouched by this rule. Deadlines on those have not moved. Watch the 60-day grace period at 8 C.F.R. § 214.1(l)(2) and the cap-gap rules for F-1s; they are unchanged and they do not wait for rulemaking.

What to do in the next four weeks

If you sponsor cap-subject H-1Bs, three things. First, file a comment before September 24 that says, specifically, what a $103,265 per-petition charge does to your hiring — headcount, roles, whether you sponsor at all. Generic opposition adds nothing to the record; a number does. Second, model FY2028 both ways so you are not making a hiring decision in March 2027 on an assumption. Third, look hard at whether any of your roles are legitimately cap-exempt, and at the O-1, E-2, TN, and L-1 alternatives for the candidates who fit them.

If you are an H-1B beneficiary watching this: your status, your extension, and your green card process are not affected by a proposed rule. What is affected is whether your employer sponsors the next person.

This is a moving target with an appeal pending in the First Circuit and a comment deadline four weeks out. If you need to know how it applies to a specific petition or a specific hiring plan, a 20-minute consultation is $250 and can be booked at blerner.timetap.com, or call (562) 495-0554.

This article is general information about United States immigration law and is not legal advice. Reading it does not create an attorney-client relationship. Immigration outcomes depend on the specific facts of each case. Law Offices of Brian D. Lerner, A Professional Corporation, 3233 E. Broadway, Long Beach, CA 90803. Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law, The State Bar of California Board of Legal Specialization.