A federal court just struck down the $100,000 H-1B fee as an illegal tax. Nine weeks later, DHS proposed something almost identical — through a process that court victory can’t touch.
On August 25, 2026, the Department of Homeland Security published a proposed rule in the Federal Register (Docket No. USCIS-2026-0298, RIN 1615-AD20): a $103,265 fee on H-1B cap-subject petitions, including petitions eligible for the advanced degree exemption. The fee would be due at the time of filing, in addition to every other fee currently required.
DHS estimates the fee would generate approximately $8.8 billion a year, based on a projected 85,000 cap-subject petitions annually. According to USCIS, the revenue is intended to help fund the broader machinery of the immigration system — adjudication, fraud detection and national security vetting, systems modernization, immigration court operations, consular processing, and labor standards enforcement.
If this number sounds familiar, it’s because it’s close to the $100,000 fee introduced last year under Presidential Proclamation 10973. That fee has had a complicated few months in court, which is worth walking through — not because it should cause alarm, but because understanding the difference between the two is genuinely useful if you or your organization sponsor H-1B workers.
A Common Point of Confusion Worth Clearing Up
It’s easy to read “a court struck down the $100,000 fee” and assume the broader question of H-1B fees is settled. It isn’t — and that’s a reasonable thing to clarify, not a reason to worry.
Here’s the honest picture:
- The $100,000 fee is currently unenforceable, not permanently resolved. A federal district court vacated Proclamation 10973’s fee in June 2026, and the First Circuit Court of Appeals denied the government’s request to reinstate it while the appeal continues. The case itself is still active.
- This new proposal is a separate process. It doesn’t depend on how that appeal turns out. It moves on its own timeline, starting with a public comment period.
- A comment period is a real opportunity, not a formality. Federal agencies are required to consider substantive comments before finalizing a rule. Employers, attorneys, and affected individuals who choose to weigh in during this window are participating in a process that can genuinely shape the outcome.
None of this means the sky is falling. It does mean that “the fee got blocked” and “this is fully resolved” are two different statements — and immigration situations that hinge on that distinction are exactly the kind of thing worth reviewing with an attorney who can track it case by case.
How This Proposal Differs From the Earlier Fee
For anyone who wants the substance rather than just the headline, here’s a side-by-side look at what’s actually different.
| Factor | Proclamation 10973 ($100,000) | Proposed Rule ($103,265) |
|---|---|---|
| Legal mechanism | Presidential proclamation (signed September 19, 2025) | Formal notice-and-comment rulemaking |
| Statutory basis cited | Presidential authority over entry of noncitizens | INA 286(m) & (n) fee-setting authority; INA 286(j); INA 214(a)(1), (c)(1) |
| Public comment process | Not required for a proclamation | Required — currently open, closing approximately September 24, 2026 |
| Court’s stated concern (June 2026 ruling) | Functioned like a tax imposed without congressional authorization | Not yet litigated |
| Scope | Some initial ambiguity around which petitions were covered | Explicitly covers cap-subject petitions, including the advanced degree exemption |
| Status as of this writing | Vacated by a district court; stay denied by the First Circuit on July 24, 2026; currently unenforceable, appeal ongoing | Proposed rule; not yet in effect |
| Earliest realistic effective date if finalized | N/A | Not before 2027 |
The main takeaway isn’t that one version is “stronger” than the other in some competitive sense. It’s that they rest on different legal grounds, so the outcome of the litigation over one doesn’t automatically tell us what will happen with the other. That nuance is genuinely useful when you’re deciding how much weight to put on either piece of news.
Who the Proposed Fee Would Apply To
The proposed fee is scoped to H-1B cap-subject petitions — the annual pool of 65,000 regular H-1B slots plus the 20,000 reserved for applicants with a master’s degree or higher from a U.S. institution.
Based on the current text, the fee would not apply to:
- H-1B petitions that are cap-exempt, including those filed by institutions of higher education, their affiliated or related nonprofit entities, and nonprofit or governmental research organizations
Based on the current text, the fee would apply to:
- Any employer filing a cap-subject H-1B petition through the annual lottery process — including petitions using the advanced degree exemption, which the proposal specifically addresses
This distinction matters mainly because it means the fee’s impact depends heavily on the specific structure of the sponsoring employer and the type of petition being filed — which is, again, a fact-specific question rather than a one-size-fits-all answer.
Timeline: What Happens Next
August 25, 2026 — The proposed rule was published in the Federal Register.
Approximately September 24, 2026 — The public comment period is expected to close, 30 days after publication.
After the comment period closes — DHS will review the comments received and, if it proceeds, draft a final rule. There is no fixed deadline for this step; past DHS fee rules have taken anywhere from a few months to well over a year to finalize.
If finalized — Based on the timeline of similar rules, an effective date is unlikely before 2027, which would put it around or before the FY2027–2028 H-1B cap registration cycle (registration has historically opened in March).
This is a gradual process with real checkpoints along the way, not a sudden change. There’s genuinely time to think this through with proper guidance rather than react to headlines.
What $103,265 Would Add to an H-1B Filing
If finalized as proposed, the $103,265 fee would come on top of costs that already exist for a cap-subject H-1B petition — base filing fees, the Asylum Program Fee, the fraud prevention fee, the ACWIA training fee for many employers, optional premium processing, and attorney fees.
Added together, a single cap-subject case could reasonably approach or exceed $105,000–$110,000 in government and processing fees alone, before salary or relocation costs.
That’s a meaningful number for any organization to plan around — which is exactly why it’s worth treating as a budgeting and strategy question rather than something to react to at the last minute.
If This Could Affect You, Here’s What’s Worth Considering
There’s no universal answer here, because the right approach depends on your specific circumstances — your timeline, your employer’s structure, and your immigration history. That said, a few general points are worth having on your radar:
Public comments are open to anyone. If you or your organization wants to weigh in on the proposal before September 24, 2026, that’s a legitimate and available option — individually or through an industry association.
It’s worth understanding your options in advance, not under time pressure. Depending on someone’s professional background, there may be more than one lawful pathway to consider — for example, whether a role connects to a cap-exempt institution, whether a candidate’s achievements could support a self-petition category, or whether an intracompany transfer applies. Which of these, if any, makes sense is genuinely case-specific.
Budgeting ahead tends to be more comfortable than reacting later. Even with real uncertainty about the final outcome, building a rough plan now — rather than waiting for a final rule — usually feels less stressful than making decisions under a compressed timeline.
None of this requires a dramatic response. It’s the kind of situation where a short conversation with an immigration attorney can clarify what actually applies to your case, separate from what’s circulating in the news.
Illustrative Example
To make this more concrete, here’s a hypothetical example based on the kind of situation many employers are navigating right now.
A mid-size company had been sponsoring a handful of H-1B hires each cap season, treating it as a routine, budgeted part of hiring. When the $100,000 proclamation fee was introduced in late 2025, the company paused new sponsorship while the legal situation was unclear, planning to revisit once there was more clarity.
By the time the district court vacated that fee in June 2026, some of the roles they had paused on had already moved forward with other employers. Not a crisis — just a reminder that “waiting for full certainty” isn’t always the lowest-risk option, because immigration timelines rarely offer complete certainty at any single moment.
When the new $103,265 proposal was published in August, the company took a different approach: rather than pausing again, they scheduled time with immigration counsel to understand which of their planned roles might have alternative pathways worth exploring, and began budgeting the proposed fee into next year’s hiring plan as one possible scenario among a few.
What this illustrates: the goal isn’t to predict the outcome perfectly — nobody can. It’s to have a plan that can flex as the situation develops, built with guidance from someone tracking the details closely.
FRAMEWORK: A FEW QUESTIONS WORTH ASKING
About your current exposure
- Do I know whether the petitions I’m involved with are cap-subject or cap-exempt?
- Do I understand that the advanced degree exemption would not exempt a petition from this proposed fee?
- Have I roughly estimated what a cap-subject filing would cost if this fee is finalized as proposed?
About the comment period
- Is submitting or supporting a public comment something my organization wants to consider before September 24, 2026?
About planning ahead
- Have I discussed alternative pathways (if relevant) with an immigration attorney, rather than assuming H-1B is the only option?
- Do I have a rough budget or plan for next year’s cap season that accounts for this proposal as one possible scenario?
If several of these feel uncertain, that’s a completely normal starting point — and a useful thing to bring to a consultation rather than something to resolve alone.
FAQ
Is the $103,265 fee in effect right now?
No. It’s a proposed rule published August 25, 2026. It needs to go through a public comment period (expected to close around September 24, 2026) and a final rule process before it could take effect — realistically not before 2027.
Does this replace the $100,000 fee from Proclamation 10973?
Not formally — they’re two separate legal processes. The proclamation fee is currently unenforceable after a district court vacated it and the First Circuit declined to pause that ruling, but that case is still on appeal. The proposed rule moves forward on its own track regardless of how that appeal resolves.
Does the advanced degree exemption protect me from this fee?
Based on the current proposal, no. The text specifically states the fee would apply to H-1B cap-subject petitions “including those eligible for the advanced degree exemption.” The exemption affects which lottery pool a petition falls into — it wouldn’t exempt it from this proposed fee.
Who would be exempt from the proposed fee?
Based on the current text, H-1B petitions that aren’t subject to the annual cap — including certain filings by nonprofit and governmental research organizations and institutions of higher education — would fall outside the fee.
Should I file my H-1B petition now, before the rule is finalized?
That depends on your specific timeline and circumstances, and it’s genuinely a question best answered with a case-specific review rather than a general rule of thumb.
What’s a reasonable thing to do right now?
Get familiar with the basics (which this post covers), consider whether a public comment makes sense for your situation, and — most usefully — talk with an immigration attorney who can help you understand how this applies to your specific case and keep you updated as the rule and the related litigation develop.
A Note on Next Steps
Before September 24, 2026, if it’s relevant to you:
- Take stock of any H-1B cap-subject filings planned for the coming cycle.
- Consider whether submitting or supporting a public comment makes sense for your situation.
- Ask an immigration attorney whether alternative pathways are worth exploring for any candidates on your list — not because H-1B is no longer viable, but because it’s worth knowing your full set of options.
Looking ahead to the next cap season (registration has historically opened in March):
- Build a rough budget that accounts for a few possible scenarios, including this fee proceeding in some form.
- If a self-petition category might apply to someone, keep in mind that building that kind of case usually takes months, so earlier conversations tend to leave more options open.
Immigration fee rules and related litigation move at their own pace, and the details matter — sometimes a lot. This proposal is genuinely still taking shape, and the most useful thing anyone can do right now is get an accurate, current read on how it applies to their specific situation rather than relying on headlines alone, since the details here are exactly the kind of thing that change case by case and week by week.
At Silmi Law, we help employers and professionals make sense of situations like this one — reviewing cap-subject exposure, discussing whether alternative pathways such as EB-1A, NIW, or O-1 might be worth exploring, and thinking through sponsorship budgets for the year ahead. If you have questions about how this proposal might apply to you, a conversation with an attorney is a reasonable and low-pressure way to get clarity.
Schedule a consultation with Attorney Sharif Silmi. In 30 minutes, we can walk through your situation, explain what’s confirmed versus still uncertain, and talk through what — if anything — makes sense to do next.
Legal Disclaimer
This blog post is provided for informational purposes only and does not constitute legal advice. Reading this content does not create an attorney-client relationship with Silmi Law Firm.
Immigration law — and fee rulemaking in particular — is highly fact-specific and subject to change. The information above reflects the proposed rule as published in the Federal Register on August 25, 2026, and the litigation status of Proclamation 10973 as of that date, cross-checked against multiple independent legal and news sources. Both the proposed rule and the related litigation are actively evolving, and the final outcome of the comment period, any final rule, and the pending appeal may differ from what is described here.
Before taking any action related to your immigration status, visa sponsorship, or hiring plans, you should:
- Consult with a qualified immigration attorney
- Confirm the current status of both the proposed rule and any related litigation, which may have changed since publication
- Obtain written legal advice tailored to your specific circumstances
Silmi Law makes no guarantee of approval, outcome, or the accuracy or completeness of any information contained in this post, and no specific result is promised or implied.
For legal representation, contact Silmi Law at:
- Phone: +1 (443) 329-2929
- Email: info@silmilaw.com
- Website: silmilaw.com
