Quick Hits
- DHS is proposing a $103,265 fee for every new fiscal year (FY) 2028 H-1B cap-subject petition on top of all existing fees.
- The fee would apply to all cap-subject employers, regardless of size.
- The fee would not apply to cap-exempt petitions (i.e., those filed by universities, nonprofit research organizations, and government research organizations) or to petitions to extend or amend existing H-1B status or to change an existing H-1B to a different employer.
- Public comments are due in late September 2026. If the rule is finalized, the fee will apply to cap-subject petitions filed in 2027. Significant legal challenges to the rule are anticipated.
Background
The proposed rule describes DHS’s authority to establish and collect fees sufficient to recover the costs of providing immigration services. Historically, U.S. Citizenship and Immigration Services (USCIS) fee rules generally recovered only USCIS’s costs. The proposal would adopt a novel interagency cost-recovery approach, using the fee to recover approximately $8.78 billion in identified costs across six federal agencies, including USCIS, the U.S. Department of Labor, U.S. Immigration and Customs Enforcement, the U.S Department of State, and others. Divided among 85,000 projected cap-subject petitions, those costs equal approximately $103,265 per petition. The proposed rule states that cap-subject H-1B employers are best suited to bear these added costs, rather than spreading them among all applicants or petitioners.
Analysis
The proposed fee would not affect existing H-1B petitions or beneficiaries already in H-1B status. It would apply prospectively to H-1B cap-subject petitions for fiscal year 2028 (calendar year 2027), including petitions filed on behalf of beneficiaries already in the United States, and would apply to quota-subject employers of all sizes.
Cap-exempt H-1B petitions, including those filed by nonprofit research organizations, governmental research organizations, and educational institutions, would not be subject to the fee. The fee would be separate from the prior $100,000 H-1B fee, which applied to certain petitions filed on or after September 21, 2025. The presidential proclamation establishing the $100,000 fee is set to expire on September 21, 2026, one year after its issuance, unless extended. A federal court in Massachusetts struck down the fee as an unlawful tax and vacated its implementing guidance on June 8, 2026. The administration’s appeal to the U.S. Court of Appeals for the First Circuit remains pending.
Next Steps
The proposed rule is not yet in effect. DHS published it on August 25, 2026, with a thirty-day window for public comments closing on September 24, 2026. After reviewing comments, DHS will decide whether to finalize, revise, or withdraw the rule. If the rule is finalized, the fee could apply to H-1B cap-selected petitions as early as April 1, 2027, unless litigation blocks its implementation. Given the recent vacatur of a similar $100,000 H-1B payment as an unlawful tax, the proposed fee is likely to face significant legal challenges.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will provide updates on the Higher Education and Immigration blogs as additional information becomes available.
This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.
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