Do I have to pay the $103,265 fee now?

No. This is a proposed rule, not a final one, and DHS has said it is not effective at this time. Do not add it to any current H-1B filing. The proposal published in the Federal Register on August 25, 2026, and DHS is accepting public comments until September 24, 2026. The agency must consider those comments before it can issue any final rule, and only a final rule with an effective date would make the fee payable.

Which petitions would the fee apply to?

Every cap-subject H-1B petition, including those filed under the advanced-degree (master's) exemption, payable at the time of filing and on top of all other fees. It would not apply to cap-exempt petitions, such as those filed by institutions of higher education, affiliated nonprofits, and nonprofit or governmental research organizations, or to petitions for workers already counted against the cap, such as extensions, amendments, and most change-of-employer petitions.

Is this the same as the $100,000 H-1B fee from last year?

No, and the difference is the whole point. The September 2025 fee was imposed by presidential proclamation, and courts vacated it as an unlawful tax that exceeded executive authority (see our coverage of the First Circuit ruling). This $103,265 fee is being pursued through notice-and-comment rulemaking instead, a process designed to be more legally durable than a proclamation. It is the government's second attempt at a six-figure H-1B fee, using a sturdier legal vehicle.

Will this proposed fee also get struck down in court?

That is genuinely uncertain, and anyone who tells you the outcome with confidence is guessing. Rulemaking is harder to challenge than a proclamation, but this fee raises the same core question that sank the last one, whether an agency can charge a six-figure fee untethered from the actual cost of adjudicating the petition. A fee framed as general revenue rather than cost recovery invites the argument that it is a tax the agency has no authority to levy. Expect litigation if it is finalized.

What does this mean for O-1A as an alternative?

It sharpens the case for it. If a cap-subject H-1B petition carries a six-figure surcharge on top of an already uncertain lottery, the O-1A extraordinary ability visa, which has no cap, no lottery, and no fee of this magnitude, becomes materially more attractive for candidates who can meet its standard. See our comparison of the two paths and our guidance for those not selected in the H-1B lottery.

The Proposed $103,265 H-1B Fee: What It Is and What to Do

What DHS proposed

DHS has proposed a new fee of $103,265 on every cap-subject H-1B petition, payable at the time of filing and added on top of every other fee an employer already pays. The proposed rule, titled “Fee for Certain H-1B Petitions,” published in the Federal Register on August 25, 2026, with a public comment period running until September 24. DHS described it in its own announcement as a way to recover a portion of the federal government’s costs of administering the immigration system.

The number is large enough to change the arithmetic of H-1B hiring on its own. A cap-subject petition that today costs an employer a few thousand dollars in government fees would, under this rule, cost more than one hundred thousand dollars before attorney fees or salary. For most roles that is not a marginal increase; it is a decision about whether the position gets an H-1B at all.

“A cap-subject H-1B that costs a few thousand dollars in filing fees today would cost more than $103,000 under this rule. For many roles that isn’t a higher fee so much as a different decision about whether the job gets an H-1B at all.”

Who it hits, and who it spares

The fee is aimed squarely at cap-subject petitions, and that scope matters as much as the number. It would apply to every petition that runs through the H-1B lottery, including those filed under the advanced-degree exemption for holders of US master’s degrees. It would not touch cap-exempt petitions filed by universities, their affiliated nonprofits, and nonprofit or governmental research organizations, and it would not reach petitions for workers already counted against the cap, meaning extensions, amendments, and most change-of-employer filings for someone who already holds H-1B status.

So the design concentrates the cost on new cap-subject hiring by for-profit employers, which is exactly the population the lottery already makes uncertain. An employer sponsoring a recent graduate through the lottery would face both the roughly one-in-four odds of selection and, if the rule is finalized, a six-figure fee on top of the filing if that registration is picked. For a cap-exempt university hiring a researcher, nothing changes.

Why this is the sequel, not the original

It is easy to confuse this with last year’s six-figure H-1B fee, and the confusion is worth clearing up, because the difference explains what DHS is doing. In September 2025, the administration imposed a $100,000 H-1B fee by presidential proclamation. Courts vacated it, and the First Circuit left that vacatur in place, on the reasoning that a fee of that size, set by proclamation and functioning as general revenue, was effectively an unlawful tax that exceeded the executive’s authority.

This $103,265 fee is the same idea pursued through a different door. Rather than a proclamation, DHS is using notice-and-comment rulemaking, the formal process the Administrative Procedure Act lays out for agency regulations. Rulemaking is generally harder to overturn than a proclamation, because it comes with a record, a stated rationale, and a comment process courts tend to defer to. Reading the two fees together, the government tried the fast route, lost, and is now trying the durable one.

Whether it survives is a real question

Durable is not the same as bulletproof, and the rulemaking route does not make the core legal problem disappear. The reason the proclamation fee was struck was not merely how it was issued but what it was: a charge far larger than the cost of adjudicating an H-1B petition, which starts to look like a tax rather than a fee. An agency can charge fees to recover its costs, and the governing user-charge statute, 31 U.S.C. 9701, directs that such charges be based on the cost to the government; an agency generally cannot levy a six-figure charge as general revenue without clear statutory authority. This proposal, framed partly as recovering government-wide immigration costs across several departments, invites the same objection in a new setting. If the rule is finalized, litigation is a near-certainty, and the outcome is genuinely open.

That uncertainty is itself a planning problem. An employer cannot build a hiring budget around a fee that might be $103,265, might be zero after a court ruling, and will not be resolved for many months. The honest posture for now is to treat the fee as a serious possibility rather than a settled cost, and to plan for the range rather than a point.

What it does to the O-1A calculation

For the population this firm works with most, the proposal lands as an argument for a path many should already be considering. The O-1A extraordinary ability visa has no annual cap, no lottery, and no fee remotely approaching this one. Its premium processing and filing fees are measured in thousands, not six figures. For a candidate who can meet the O-1A standard, a rule that adds $103,265 to the cap-subject H-1B route makes the comparison lopsided in a way it was not before.

None of that changes who qualifies for O-1A, which remains a genuinely high bar, as our comparison of the two visas lays out. But for high-skill professionals weighing their options, and for the many who were not selected in the FY2027 lottery, a looming six-figure H-1B surcharge is one more reason to get an honest read on whether the O-1A route is open to them.

What to do now

Three things follow from all of this. First, do not pay or budget the fee as a certainty: it is a proposal, it is not effective, and it should not appear on any current filing. Second, if the fee would affect your hiring or your case, the comment period is open until September 24, 2026, and a substantive comment on the record is the one form of direct input the process offers before a final rule. Third, if you are choosing between visa strategies, factor the proposal into the H-1B-versus-O-1A decision now rather than after a final rule, because the lead time to build a strong O-1A record is measured in months, and the candidates who benefit most from an alternative are the ones who started preparing before they needed it.

DHS Proposes a $103,265 Fee on Every Cap-Subject H-1B Petition