DHS Proposes a $103,265 Fee on Every H-1B Cap Petition: What the Proposal Would and Would Not Reach in Texas

What Changed, and When

On August 25, 2026, the Department of Homeland Security published a notice of proposed rulemaking in the Federal Register titled “Fee for Certain H-1B Petitions,” at 91 FR 54817 (pages 54817–54839), under DHS Docket No. USCIS-2026-0298 and RIN 1615-AD20.

In the words of the notice, DHS “proposes to establish a $103,265 fee, payable at the time of filing, for all H-1B cap-subject petitions, including those eligible for the advanced degree exemption, which would be imposed in addition to all other applicable fees or payments.” The proposed fee would be added at 8 CFR 106.2(a)(3)(xii) as a standalone provision rather than folded into the existing H-1B petition fee at 8 CFR 106.2(a)(3)(i).

Where the figure comes from is set out in the rule. DHS identified roughly $8.78 billion in costs it attributes to administering the lawful immigration system across several federal agencies — USCIS, CBP, ICE, the Executive Office for Immigration Review, the Department of State and the Department of Labor — and divided that total by a projected annual volume of 85,000 cap-subject petitions. The notice states plainly that this is a departure from past practice: DHS writes that it has “never directly transferred the costs of one program to another based on a determination that requestors under one program can afford higher fees.”

The notice also addresses stacking. The proposed fee “would be in addition to any other applicable fees or payments … including any separate payment obligation required under a Presidential Proclamation,” so a petitioner subject to both would owe both.

The single most important fact on this page is that none of this is in effect. A notice of proposed rulemaking is a proposal. The notice states that “Written comments must be submitted on or before September 24, 2026,” and that the electronic docket accepts comments until midnight Eastern time at the end of that day. After the comment period closes, DHS reviews the comments and may finalize the rule, revise it, or withdraw it. Reporting by Ogletree Deakins notes that if a final rule were issued in this form, the fee could reach cap-selected petitions as early as April 1, 2027 — the fiscal year 2028 cap season — and that significant legal challenges are anticipated.

Who in Texas This Reaches

Texas has one of the largest H-1B workforces in the country. Reporting by The Dallas Morning News on federal data placed Texas second among the states for H-1B approvals in fiscal year 2025, with more than 41,000 recipients, while also explaining why H-1B counts are genuinely difficult to measure precisely. The workers sit largely in the Dallas–Fort Worth, Austin, Houston and San Antonio corridors, in technology, engineering, healthcare and higher education.

Within that population, the proposal reaches people very unevenly, and the exclusions matter more than the headline number for most readers:

• People already in H-1B status are not reached by the proposal. Ogletree Deakins summarizes the rule as not applying “to petitions to extend or amend existing H-1B status or to change an existing H-1B to a different employer.” An extension with the same employer, an amended petition, and an H-1B transfer all sit outside it.
• Cap-exempt petitions are not reached. The notice states that DHS “is proposing to not require the fee to be paid with a petition for a cap-exempt H-1B nonimmigrant,” because many cap-exempt employers are nonprofit research organizations, governmental research organizations and educational institutions. In Texas that covers a great deal of university, medical-school and teaching-hospital sponsorship.
• Cap-subject employers of every size would be reached equally. The rule applies the same flat amount whether the petitioner is a large staffing company or a five-person startup, including petitions filed under the 20,000-place advanced degree exemption for holders of a U.S. master’s degree or higher.
• Prospective cap beneficiaries are the group whose plans this touches. That includes students and recent graduates on F-1 work authorization in Texas who were counting on a future cap registration, and workers abroad whose Texas employer intended to register them.

What This Changes Legally

Right now, nothing. USCIS fees are set by regulation in Title 8 of the Code of Federal Regulations, and a proposed rule has no legal effect. Section 106.2 reads today exactly as it did before August 25.

The surrounding structure is unchanged as well. Congress caps initial H-1B grants at 65,000 a year under INA section 214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A), with a further 20,000 places for holders of a qualifying U.S. master’s degree or higher under INA section 214(g)(5)(C). Employers still register each beneficiary electronically during the announced registration period, and a petitioner whose registration is selected still gets a filing window of at least 90 days. The revised weighted selection process took effect on February 27, 2026, before the fiscal year 2027 cap season.

This proposal is also separate from the $100,000 payment established by presidential proclamation for certain H-1B petitions filed on or after September 21, 2025. Ogletree Deakins reports that a federal court in Massachusetts held that payment to be an unlawful tax and vacated the implementing guidance on June 8, 2026, that the government’s appeal to the U.S. Court of Appeals for the First Circuit remains pending, and that the proclamation is set to expire on September 21, 2026 unless it is extended. The proposed rule and the proclamation are different instruments; the notice contemplates that a petitioner covered by both would pay both.

It is also worth separating this from the 9-11 Response and Biometric Entry-Exit Fee, which the notice discusses at 91 FR 51360. That is the $4,000 H-1B and $4,500 L-1 charge that reaches extension filings from covered employers beginning September 9, 2026 — a different rule, a different amount, and one that does reach extensions.

What Kind of Option Might Apply

Nothing here is a prediction about any individual case, and a general summary is not an answer about anyone’s own situation. What an immigration lawyer can review, on the specific facts, includes:

• Whether a planned filing is actually cap-subject. Cap exemption turns on the employer and the arrangement, not on the job title, and the analysis for a university affiliate or a nonprofit research organization is fact-specific.
• What status a person holds today and what maintains it — F-1 and optional practical training timelines, cap-gap, H-4 and H-4 employment authorization, and the effect of a change or extension filing.
• Whether another nonimmigrant category fits the facts, such as O-1, TN, E-2, E-3, L-1 or J-1, each of which has its own criteria and its own drawbacks.
• Whether an employment-based permanent residence path is realistic and what the priority-date reality looks like for a particular country of birth.
• For an employer, what a sponsorship program costs under the rules in force today, what a registration season commitment involves, and what the Labor Condition Application and public access file obligations require.
• Timing considerations for anyone weighing a filing decision while a fee proposal is pending, given that the current rules are the ones in force.

Why Acting Quickly Can Matter

The dates here are facts rather than warnings. The proposal was published August 25, 2026. Written comments are due on or before September 24, 2026. No final rule exists, and no effective date exists for anything described above. The registration and petition rules that apply today are the ones in force today.

What consumes calendar time is rarely the filing itself. Degree evaluations, employer records, prevailing wage determinations, transcripts and translated documents generally have to be requested from someone else, and an eligibility review that turns up a problem is far more useful before a filing goes in than after. Talking to an immigration lawyer early gives more room to work with than talking to one after a window has closed. If a lawyer in our network offers an initial consultation, it is free.

Sources

1. U.S. Department of Homeland Security, “Fee for Certain H-1B Petitions,” notice of proposed rulemaking, 91 FR 54817, Federal Register, August 25, 2026, DHS Docket No. USCIS-2026-0298, RIN 1615-AD20 (primary document).
2. Ogletree Deakins, “DHS Proposes New $103,265 Fee for Cap-Subject H-1B Petitions,” August 25, 2026.
3. The Hill, “DHS proposes $103,265 fee for H-1B visa workers under annual cap.”
4. The National Law Review, “New $103,265 Fee for Cap-Subject H-1B Petitions Proposed by DHS.”
5. The Dallas Morning News, “Have questions about H-1B visa numbers in Texas? Here’s why they’re difficult to measure,” February 18, 2026.