Also in Türkçe · Español

DHS has proposed a $103,265 fee on cap-subject H-1B petitions. It is a proposal, not a rule in force, and comments close on September 24, 2026. Here is what it would actually do — and the three things it would not.

What the headline said

On August 24, 2026, Bloomberg Law published a story headlined “New $103,000 H-1B Fee Planned for Visa Workers Already in US.” Read in context, that story was accurate. What happened to it afterward was not the story’s fault.

The Washington Post carried the news the same day. Forbes followed on August 25, then Newsweek, The Hill and Outlook India. Somewhere along that chain the word “planned” fell away, the words “cap-subject” were never picked up at all, and by the time the story reached group chats, LinkedIn threads and our voicemail it had compressed into one sentence that is simply false: existing H-1B holders now owe $103,265.

They do not. Nobody owes this money today — not H-1B workers, not their employers, not anyone whose extension is sitting at a service center this week. What exists is a proposal, and proposals are worth reading closely precisely because they are not yet law.

What the rule actually says

DHS and USCIS released on August 24, 2026, and the Federal Register published on August 25, 2026, a Notice of Proposed Rulemaking titled “Fee for Certain H-1B Petitions” — FR Doc. 2026-17324, 91 FR 54817, RIN 1615-AD20, DHS Docket USCIS-2026-0298.

The proposal would create a new fee at 8 CFR 106.2(a)(3)(xii) of $103,265, payable at the time of filing, on all H-1B cap-subject petitions — including those filed under the advanced-degree (master’s) exemption — and expressly in addition to all other fees. It replaces nothing and caps nothing. It would sit on top of the filing fees an employer already pays.

The figure is not a round policy number, and DHS does not present it as one. It is derived arithmetically in the NPRM: $8,777,488,035 divided by 85,000 projected filings equals $103,264.57, rounded up. DHS says the revenue would fund USCIS, CBP, ICE, the Executive Office for Immigration Review at the Department of Justice, the State Department and the Department of Labor. In its own preamble, DHS concedes that the fee may reduce registration and petition volumes — the agency saying, in writing, that it expects the proposal to change behavior.

Three things this proposal does not do

First, it is not in effect, and there is no date on which it takes effect. The Federal Register record for this document shows no effective date at all. That is not an oversight — a proposed rule does not have one. Comments are due September 24, 2026. After the comment period closes, DHS must consider what it receives and publish a final rule before any fee exists in law. A proposed rule can be finalized as written, finalized in a different form, or never finalized at all.

Second, it does not reach every H-1B petition. It reaches cap-subject petitions. Petitions that are cap-exempt under INA §§ 214(g)(5) and (7) — those filed by universities, by nonprofit entities affiliated with universities, and by nonprofit and governmental research organizations — sit outside its scope entirely.

Third, it does not reach workers already counted against the cap. Extensions of stay, amended petitions and change-of-employer transfers for a worker who has already been counted are not cap-subject filings. This is the precise point at which the “workers already in the US” reading went wrong in transit.

Here is the part the headlines were reaching for, stated correctly. Because this fee rests on INA § 286(m) fee authority rather than on any authority over entry, it would reach cap-subject change-of-status petitions filed inside the United States. A researcher in F-1 status in Maryland whose employer files a cap-subject petition to change her status to H-1B would fall within the proposal as written, without ever leaving the country. That is a real and consequential feature of the NPRM, and it deserved the attention it received. It is not the same claim as “existing H-1B holders owe $103,265.”

A notice of proposed rulemaking is the government writing down what it would like to do. It is not a bill you have received, and it is not a reason to abandon a filing plan.

Who is NOT affected

Cap-exempt petitions are outside the proposal. Filings that are exempt from the numerical limits under INA §§ 214(g)(5) and (7) — universities, affiliated nonprofits, and nonprofit and governmental research organizations — are not reached by the proposed fee. A hospital-affiliated research institute filing an H-1B petition next spring is looking at a different set of questions than a technology company entering the lottery.

Workers already counted against the cap are outside the proposal. If your H-1B was counted in a prior fiscal year, an extension, an amendment or a transfer to a new employer is not a cap-subject petition, and the proposed fee is written to reach cap-subject petitions.

And today, everyone is outside it, because it is not in effect. That is not a technicality worth minimizing. It is the single most important fact in this article, and it is the one that was lost in circulation.

The $100,000 payment people are confusing this with

There is a second six-figure H-1B number in circulation, and it is a different thing entirely. The $100,000 H-1B payment came from Proclamation 10973, signed on September 19, 2025 and published on September 24, 2025. By its own terms it expires, absent extension, twelve months after its effective date of 12:01 a.m. EDT on September 21, 2025 — that is, around September 21, 2026.

DHS itself draws the line. Footnote 4 of the NPRM states: “Presidential Proclamation 10973, unless extended, will expire before the fee proposed in this rule will take effect.” The agency proposing the $103,265 fee is telling readers, in its own document, that the $100,000 payment is on a separate track.

That payment also has its own litigation history. The U.S. District Court for the District of Massachusetts vacated the agency guidance implementing the Proclamation 10973 payment in California et al. v. Mullin, No. 25-13829 (D. Mass.). The government appealed to the First Circuit on June 11, 2026, and that appeal remained pending as of August 25, 2026.

So: $100,000 and $103,265 are different fees, resting on different legal authorities, with different scopes. Anyone who has added them into a $203,265 figure is describing something that does not exist.

The second myth: cap-exempt status is not being abolished

On August 26, 2026, Business Standard ran a piece headlined “H-1B shake-up: US plans tougher rules on cap exemptions, third party jobs.” In the retelling it became something much stronger — that cap-exempt status is being abolished. It is not.

What actually happened is this. On August 24, 2026, USCIS sent OIRA a proposed rule, RIN 1615-AD00, titled “Reforming the H-1B Nonimmigrant Visa Classification Program.” The entire public abstract says that DHS “proposes to reform the H-1B program by revising eligibility for cap exemptions, providing greater scrutiny for employers that have violated program requirements, and increasing oversight over third party placements, among other provisions.”

That sentence is the whole of what is public. No rule text has been released — no definitions, no thresholds, no scope, no dates. The rule must clear OIRA review, publish as a notice of proposed rulemaking, and take public comment before anything at all changes. Today, nothing has changed for cap-exempt employers. A university, an affiliated nonprofit or a nonprofit research organization that is cap-exempt this morning is cap-exempt this evening.

This is worth watching closely, and worth planning around only once there is text to plan around. An abstract is not a rule. Reading a one-sentence agenda entry as though it were a regulation is how the first myth was made, and it is how the second one is being made now.

What an employer should do in the next four weeks

The most useful thing available to you right now costs nothing. The comment period on the $103,265 fee closes on September 24, 2026, and a public comment is free to file. If this proposal would change what your company does — the roles you would stop hiring for, the candidates you would stop sponsoring, the research that would move somewhere else — that is exactly the material an agency is required to consider. DHS has already written into its own preamble that it expects volumes to fall. A comment that puts specific facts and figures behind that concession is worth more than a comment that expresses displeasure.

The second useful thing is to keep this season’s work moving. Nothing filed today carries this charge, and a proposal that has not been finalized is not a reason to withdraw a petition, cancel a hire or tell an employee to leave the country. The third is to know exactly which of your filings would be cap-subject and which would not, because that single distinction determines whether this proposal reaches you at all.

Key Dates

What You Should Do Now

• Tell your team the fee is not in effect. Say it plainly and in writing. The single most expensive consequence of this news cycle so far has been decisions made by people who believed they already owed the money.
• Sort your H-1B filings into cap-subject and cap-exempt. That line decides whether the proposal reaches you. Extensions, amendments and change-of-employer transfers for workers already counted against the cap are not cap-subject filings.
• Flag your cap-subject change-of-status cases. Because the proposal rests on INA § 286(m) fee authority, it would reach cap-subject change-of-status petitions filed inside the United States. If you sponsor from F-1 or another status without departure, this is your exposure point if the rule is finalized as written.
• File a comment before September 24, 2026. It is free, it is public, and it is the only formal channel in which your specific facts reach the agency. DHS has already conceded that the fee may reduce registration and petition volumes; give that concession evidence.
• Keep the $100,000 payment in a separate file. Proclamation 10973, its expiration around September 21, 2026 absent extension, and the pending First Circuit appeal in California et al. v. Mullin are a distinct matter from this NPRM.
• Do not restructure around RIN 1615-AD00 yet. Only a one-sentence abstract is public, the rule is still at OIRA, and nothing has changed today for cap-exempt employers. Watch for the NPRM text.
• Proceed with this season’s hiring plan. Nothing filed today carries this charge. Withdrawing a petition or pausing a hire because of a proposed rule trades a certain cost for a speculative one.

Sources: Federal Register, 91 FR 54817 (FR Doc. 2026-17324) · OIRA agenda entry, RIN 1615-AD00.

This article is general information about the DHS notice of proposed rulemaking “Fee for Certain H-1B Petitions,” published August 25, 2026 at 91 FR 54817 (FR Doc. 2026-17324, RIN 1615-AD20, DHS Docket USCIS-2026-0298). A proposed rule is not law: it creates no obligation and no fee unless and until it is finalized. It is not legal advice and does not create an attorney-client relationship. Content is current as of August 29, 2026. Sources: https://www.federalregister.gov/documents/2026/08/25/2026-17324/fee-for-certain-h-1b-petitions · https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202510&RIN=1615-AD00

Ozek Law Firm, LLC · 4500 East West Highway, Suite 150, Bethesda, MD 20814 · +1 (202) 854-8545 · info@ozeklaw.com · www.ozeklaw.com
Consultations in English, Turkish, Spanish.