The United States Department of Homeland Security (DHS) proposed a new rule for H-1B visa applicants, establishing a $103,265 fee for all petitions subject to the annual H-1B cap. The proposed fee would apply to all employers submitting cap-subject petitions, including small businesses and nonprofits. The fee does not apply to cap-exempt petitions, including those filed by universities, nonprofits with qualifying affiliation agreements, nonprofit research organizations, or governmental research organizations.
If this rule takes effect, employers may need to reassess their H-1B sponsorship programs. Because it is a filing fee, employers would be required by statutes to pay the fee and could not pass the cost onto the employee.
If all this sounds familiar, you’ll recall that a presidential proclamation in September 2025 also imposed a $100,00 fee on new H-1B visa petitions. A federal judge struck down that fee last June, calling it “an intrusion on Congress’s taxing authority,” and in July, the United States Court of Appeals for the First District rejected the Trump administration’s motion to stay that decision. The Trump administration has appealed.
Theoretically, if the $100,000 fee from the September 2025 proclamation is ultimately ruled lawful, employers could be subject to both fees, totaling over $200,000 per H-1B employee.
A New Rationale
The new rule, published on August 25, 2026, echoes presidential proclamation published on September 19, 2025 — but only in the amount of the fee the administration seeks to impose. The rationale for levying it has changed.
Last September, the stated purpose of the $100,000 fee in the presidential proclamation was to restrict the admission of H-1B visa holders. The H-1B program, according to the Trump administration, constitutes “the large-scale replacement of American workers through systemic abuse of the program” by employers.
Now, according to DHS, the purpose of the $103,265 fee is about providing a “dedicated revenue mechanism to recover the costs incurred across the federal government to adjudicate, vet, and support lawful immigration programs that otherwise must be funded by taxpayers.”
DHS considered recovering the costs identified in this rule by applying it to all benefit requests, but is focusing on H-1B petitioners because, “as compared to other benefit requestors,” H-1B petitioners “are most willing and able to pay an additional fee.”
The H-1B Program
The H-1B visa program is a non-immigrant visa that allows employers in the United States to employ foreign workers in specialty occupations. The annual statutory cap for new H-1B visas is 85,000 — this includes the regular cap of 65,000 visas and 20,000 visas for applicants with a master’s degree or higher from a college or university in the United States. According to the Bipartisan Policy Center, computer-related, high-tech positions — particularly software engineering, data science, and IT support — account for nearly two-thirds of all H-1B approvals.
A National Foundation for American Policy study by University of Florida economist Madelin Zavodny found that “H-1B visa holders do not adversely affect” American workers. In fact, the evidence shows that the presence of H-1B visa holders is associated with lower unemployment rates and faster earnings growth among all college graduates, including recent college graduates.
Next Steps
This proposed rule is not yet in effect. Stakeholders are encouraged to submit comments about the proposed rule until September 24, 2026. After comments have been reviewed, DHS will either finalize, revise, or withdraw the rule. If finalized, the fee could apply to H-1B petitions as early as April 1, 2027 — unless litigation blocks enactment. Given the vacatur of the $100,000 presidential proclamation fee as an unlawful tax, this more recent proposed fee is likely to face legal challenges as well.
If you have any questions or concerns about how this proposed fee could impact your global talent recruitment strategy — or would like assistance submitting a comment about the proposed rule — don’t hesitate to contact Orr & Reno.
