Notice of Proposed Rulemaking – $103,265 Fee for H-1B Cap-Subject Petitions

By Melany Savitt, Corinne Brooks, Melina LaMorticella, and Alan Perkins

The Department of Homeland Security (DHS) has published a notice of proposed rulemaking (NPRM) to establish a $103,265 fee for all H-1B cap-subject petitions that go through the annual lottery. The new fee is separate from the prior $100,000 fee imposed on September 19, 2025, for certain petitions which is currently being litigated. The $103,265 fee would be paid at the time H-1B cap-subject petition is filed with the U.S. Citizenship and Immigration Services (USCIS) and would be required in addition to all other applicable USCIS filing fees.

The new filing fee would apply irrespective of employer size, large or small. Based on the NPRM, the proposed fee of $103,265 would not apply to most H-1B extensions, amendments, changes of employer, or cap-exempt petitions.

Comments on the proposed rule are being accepted through September 24, 2026, and can be submitted through this portal, referencing DHS Docket No. USCIS-2026-0298. Although legal challenges are expected, these challenges cannot be filed until a rule is finalized and takes effect. We encourage interested parties to submit comments.

If implemented, this rule will undoubtedly have a major impact on U.S. employer recruiting and hiring. U.S. universities may likely also see noncitizen enrollments decline if the pathway toward H-1B professional employment is constructively closed. Our office is closely monitoring the progress of this NPRM and will provide further updates when available.

This client alert is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have any questions regarding this update, or for more information about this topic, please contact any of the attorneys in our Business Immigration Practice Group, or the attorney with whom you normally consult.