Employers just got a fresh number to plan around. On August 25, 2026, the Department of Homeland Security published a proposed rule: $103,265 for every cap-subject H-1B petition. It follows a June court order that blocked an earlier version of this fee. The timing is rough. Many companies are already budgeting for next year’s cap season. Our H-1B Visa team has already fielded a dozen calls about it this week.
Why DHS Is Trying Again
Back in June, a federal judge in Massachusetts threw out the guidance behind the earlier $100,000 H-1B fee. California v. Mullin is now on appeal at the First Circuit, but DHS didn’t wait around for that fight to finish. This time it opened formal notice-and-comment rulemaking instead of leaning on a presidential proclamation.
That’s not a small change. Courts tend to give that more deference than an order handed down by decree. Don’t assume this fee dies the way the last one did. Two other lawsuits over the original proclamation are still working through Massachusetts and California federal courts. Either one could still push DHS to adjust course before this rule becomes final.
Who Would Actually Pay It
The $103,265 charge applies to cap-subject H-1B petitions, including ones claiming the advanced degree exemption. Cap-exempt employers are off the hook. Universities, their affiliated nonprofits, and government research organizations wouldn’t owe a cent under this rule. Everyone else needs to plan for it.
Picture a small business sponsoring a single engineer. The fee alone can run higher than that person’s entire first-year salary. Our Employment Immigration attorneys can walk you through whether your upcoming filings fall inside the exemption or outside it. The distinction matters more now than it used to. The fee gets charged at filing, not at approval, so it belongs in next year’s budget starting now.
The Timeline Employers Need to Track
DHS estimates the fee would bring in roughly $8.8 billion a year across the agencies handling immigration enforcement and adjudication. Comments are open through September 24, 2026. A final rule would take effect at least 30 days after DHS publishes it, likely sometime in 2027. Nothing changes for petitions filed today.
But if you’re planning cap-season filings for next year, don’t wait for the rule to finalize before you start budgeting. Submitting a comment is also one of the only direct ways to push back before the number is set in stone.
What This Means for Hiring Decisions
DHS itself expects the fee to hit more than 11,000 small entities, going by FY 2025 filing data. When a filing suddenly costs six figures, a stretched-thin firm faces a real decision. Sponsor the position, or drop it. Some employers will look at other visa categories where they still qualify. Others will speed up green card sponsorship for H-1B employees already on staff, before the rule locks in.
Which path makes sense depends entirely on your workforce and your timeline, not on a one-size-fits-all answer. Our Work Visa practice helps companies work through exactly this kind of tradeoff, ideally before a deadline forces the choice.
How We Can Help You Plan Ahead
Rules like this one rarely move in a straight line. Comment periods shift outcomes, lawsuits reshape deadlines, and agencies rewrite language before anything sticks. Waiting for certainty here could mean waiting until 2027, and that’s a long time to leave a hiring decision hanging.
The Law Office of Olena Manilich follows these developments closely and turns them into guidance you can actually use. It doesn’t matter if you’re the employer sponsoring the visa or the worker holding it. Schedule a consultation with our team, or contact us directly with questions about your specific filing timeline.
