The U.S. Department of Homeland Security (DHS) has proposed a new fee of $103,265 for all H-1B cap-subject visa petitions. The public comment period for this proposed rule is open until September 24, 2026.
Notably, this new fee is intended to completely replace the previous $100,000 fee, which was established by executive order, has faced significant legal challenges, and is set to expire in September. Recently, a federal judge ruled it an unauthorized tax, determining that the president could not bypass Congress to implement such a high charge.
“This proposed rule appears to pursue, through a different regulatory mechanism, a fee similar to the $100,000 H-1B fee established by Presidential Proclamation in 2025 and subsequently challenged in court,” said Jimena Cabrera of Cabrera Law.
How does the new fee proposal differ from the original $100,000 charge?
The proposed fee would also apply to petitions by H-1B applicants selected through the random lottery process. While the charges do not accumulate, the newly proposed rule covers a broader range of applications than the original executive order.
The previous $100,000 fee applied only to companies sponsoring certain foreign workers. In contrast, the new proposal extends to all cap-subject petitions, including those for foreign workers already in the U.S., such as F-1 students changing their status, as well as those applying from outside the country.
“This would significantly affect individuals already lawfully present in the United States who seek H-1B status through the cap,” Cabrera said. “The proposed fee would apply even when the beneficiary does not need to obtain an H-1B visa abroad. I encourage interested parties to review the proposed rule and consider submitting a public comment.”
According to Minwon Cho of Cho Law, while the suggested fee would be the same for all H-1B petitioners, its impact would vary greatly among them.
“A large corporation may be able to absorb or distribute that expense, while a small business, startup, or early-stage employer may not,” he noted.
He emphasized that the impact on small businesses requiring H-1B workers would be significant.
“For a small employer offering a lawful prevailing wage below $100,000, the proposed fee alone could exceed the employee’s entire annual salary, before accounting for existing filing fees and other employment expenses,” Cho added. “I therefore ask DHS not to adopt a single uniform fee and to account meaningfully for employer size and actual financial capacity,” he concluded.
The original fee was refundable if the visa petition was denied, offering some financial reassurance to companies. However, the new fee will be non-refundable. This means that companies will need to pay the charge merely for the opportunity to file and receive a decision, with no possibility of a refund. This change could significantly impact how businesses hire foreign workers and manage their immigration-related expenses.
DISCLAIMER: The views expressed in this article are solely the views of the author and do not necessarily represent the views of the publisher, its employees. or its affiliates. The information found on this website is intended to be general information; it is not legal or financial advice. Specific legal or financial advice can only be given by a licensed professional with full knowledge of all the facts and circumstances of your particular situation. You should seek consultation with legal, immigration, and financial experts prior to participating in the EB-5 program Posting a question on this website does not create an attorney-client relationship. All questions you post will be available to the public; do not include confidential information in your question.
