DHS proposes a $103,265 fee on every new cap-subject H-1B petition

The Department of Homeland Security posted a proposed rule this week that would charge $103,265 on every new cap-subject H-1B petition. The fee would apply to the 65,000 regular visas and the 20,000 advanced-degree exemptions. A 30-day comment period started when the notice hit the Federal Register.

The number is not the same as the $100,000 proclamation President Donald Trump issued on 21 September 2025. That order used section 212(f) of the Immigration and Nationality Act to bar entry unless the employer paid. A federal judge in June called the charge an unlawful tax that needed Congress. The First Circuit in Boston is hearing the appeal. The proclamation itself expires in September, one year after it was signed.

DHS is now trying a different statute: the fee-setting language that lets U.S. Citizenship and Immigration Services recover the cost of running immigration programmes. USCIS spokesman Zach Kahler said the money would support immigration programs that otherwise must be funded by taxpayers. The proposed rule is broader than the proclamation. The 2025 order spared many people already in the United States, including F-1 students changing status. The $103,265 fee, as drafted, sits on the petition itself, including those students.

Uptake under the proclamation was tiny. Court papers said about 70 employers had paid on 85 applications by late February. Most sponsors waited for the courts. DHS itself wrote that the new fee may cut the number of cap registrations and that small firms may file fewer petitions. It still called the amount appropriate.

H-1B is how U.S. technology firms, hospitals and universities hire people in specialty occupations for three to six years. Indian nationals take the largest share. A six-figure charge on top of legal fees changes the arithmetic for any role that is not at the top of a pay band. Some employers will move the work offshore. Some will hire the same graduate only if the salary can absorb $103,265 in year one. Some will stop sponsoring.

Leon Fresco of Holland and Knight said he is not optimistic that DHS will prevail if the rule is sued. Other immigration lawyers have made the same point: a fee that large, justified as cost recovery for the whole immigration system rather than for processing one form, looks like the tax a judge already struck. A former acting USCIS chief counsel told Bloomberg Law an injunction is a near certainty in a lower court and that the Supreme Court could go either way.

There is a second, quieter change already in force. On 29 December 2025 DHS replaced the random H-1B lottery with a weighted draw that favours higher wages. That rule took effect on 27 February 2026, in time for the FY2027 cap season. Stacked with a $103,265 cheque, the system tilts toward large firms and senior salaries and away from startups and university spinouts.

Indian IT exporters and U.S. hospital systems will read the rule differently. A software firm can move a role to Bengaluru. A rural hospital that needs a physician on an H-1B cannot. That split will show up in the comment file. Universities that sponsor postdoctoral scientists will argue that $103,265 on a federal grant is a cut to research, not a fee.

The comment period is short on purpose. DHS wants a final text before the next cap season. Employers who wait for the Supreme Court will sit out a cycle. Employers who pay will have a receipt and a political target on the same PDF. That is the choice the $103,265 line is designed to force.

Comments close in late September. A final rule could arrive before the next cap season. Until then employers have a proclamation that is blocked, a proposed fee that is not yet law, and a lottery that already weights pay. The only hard number on the table is $103,265. That is the line a general counsel can take to a board and ask whether the job still gets filed.