U.S. Agency Proposes New $103K Fee for Certain H1-B Visa Petitions

The U.S. Department of Homeland Security (DHS) on Tuesday, Aug. 25, published a proposed rule that would establish a $103,265 fee for all H-1B cap-subject visa petitions. Most notably, this fee, which would need to be paid at the time of filing, would be distinct and separate from the $100,000 H-1B fee that was instituted by President Donald Trump in a September 2025 executive order.

The latter fee, which Trump initiated to address “large-scale [program] abuse” by employers and help employers “fill jobs for which highly skilled and educated American workers are unavailable,” is set to expire on Sept. 21, under the terms of the executive order (however, the order provides the option for an extension). A federal court in Massachusetts struck down the fee in June as an unlawful tax and vacated its implementing guidance. The administration appealed the verdict and the case now sits with the U.S. Court of Appeals for the First Circuit.

The administration is seeking to justify the Aug. 25 published rule under the theory that DHS has the authority to tax new H-1B visas to fund immigration services in several government agencies (e.g., the Department of Labor, Department of State, Immigration and Customs Enforcement, and Citizenship and Immigration Services).

KFF, an independent, nonpartisan nonprofit organization focused on national health issues and health policy, called out the core differences between the two visa fee programs, stating, “While the 2025 proclamation only applied to new H-1B visa petitions from outside the U.S., the fee under the proposed rule would apply to all H-1B visa petitions subject to the annual cap, including those already in the U.S. converting to an H-1B visa. Since the fee is applicable at the time of petition filing, it will apply to a significantly larger number of petitions than the 85,000 approved annually under the cap, including those that are not approved.”

Publication of the proposed rule kicked off a 30-day public comment window (closing Sept. 24). After reviewing the comments, DHS will determine whether to finalize, revise or withdraw the rule. If finalized, the rule could apply to H-1B cap-selected petitions as early as April 1, 2027, unless litigation blocks its implementation. Given the vacatur of the $100,000 H-1B payment, the proposal is likely to face similar legal challenges.

As a reminder, under U.S. law:

• The employer is responsible for paying the legal, processing and citizenship-and-immigration filing fees for employment-based visas and/or visa extensions.
• Foreign national employees are responsible for paying legal and/or filing fees associated with visas for their dependents.

DHS stated in a news release on Monday, Aug. 24, that the newly proposed fee is part of a plan to make the federal immigration system self-sustaining. The agency estimates the move would:

• Generate approximately $8.8 billion annually.
• Recover a broad spectrum of federal costs required to administer the lawful immigration system, including those associated with:
  • Adjudication and vetting (processing immigration benefits, fraud detection and national security vetting);
  • Infrastructure (digital systems modernization, records management, and fee collection operations);
  • Enforcement and courts (Department of Labor standards enforcement and immigration court operations); and,
  • Global operations (consular visa processing and multi-agency coordination).

The proposed rule maintains the H-1B program’s standard annual statutory limits. The regular cap remains limited to 65,000 visas, alongside the advanced-degree exemption cap of 20,000 visas reserved for applicants holding a master’s degree or higher from a U.S. institution.

The fee wouldn’t apply to cap-exempt H-1B petitions from:

• Institutions of higher education;
• Nonprofit research organizations; and,
• Governmental research organizations.

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