The Department of Homeland Security (DHS) has proposed a new $103,265 government fee for H-1B cap petitions, a move that could dramatically reshape the economics of hiring foreign professional talent in the United States. Published on August 25, 2026, the proposed rule would require employers filing H-1B cap-subject petitions to pay the fee in addition to existing H-1B filing fees and government assessments.
If finalized, the fee would apply to petitions filed under both the regular H-1B cap and the advanced degree exemption (master’s cap). For many employers, the proposed fee would be layered on top of existing H-1B filing costs, which already total approximately $6,300 per petition, depending on employer size and whether premium processing is requested.
Why Employers Should Pay Attention
The proposal could significantly increase employers’ cost of recruiting and retaining foreign talent to fill specialized positions. Industries such as technology, health care, engineering, financial services, research, and higher education, where employers often face shortages of specialized workers, could be particularly affected.
If implemented as proposed, the fee would represent one of the most significant increases in H-1B sponsorship costs in the program’s history. The proposal comes at a time when many employers are already navigating increased immigration-related costs, heightened compliance obligations, and ongoing competition for specialized talent.
Key Features of the Proposed Rule
Under the proposed rule:
- Fee Amount. $103,265 per H-1B cap-subject petition.
- The proposed fee would apply to:
- H-1B petitions filed under the annual 65,000 regular cap.
- H-1B petitions filed under the 20,000 advanced degree exemption (master’s cap).
- When Paid. The fee would be due when the H-1B petition is filed.
- Additional Cost. The fee would be separate from and in addition to all existing filing fees, including the Form I-129 filing fee, fraud prevention and detection fee, ACWIA training fee, asylum program fee, and any other applicable government-imposed fees or surcharges.
Who Would Be Affected?
The proposal would apply broadly to employers filing cap-subject H-1B petitions, regardless of company size, annual revenue, industry, or nonprofit status.
Unlike previous immigration fee increases, DHS has not proposed reduced fees, exemptions, or special accommodations for small businesses, startups, or nonprofit employers. As a result, a startup seeking to sponsor a software engineer, a nonprofit hiring a specialized professional, and a multinational corporation recruiting technical talent would all be subject to this proposed fee.
Petitions Not Subject to the Proposed Fee
DHS has proposed keeping existing cap-exempt categories outside the scope of the new fee. As a result, qualifying institutions of higher education, affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations would remain exempt when filing cap-exempt H-1B petitions. Although many universities and certain affiliated nonprofit and research organizations qualify for cap-exempt H-1B sponsorship, not all nonprofit employers are cap-exempt.
The fee also would not apply to H-1B extension petitions or change-of-employer filings for workers who have already been counted against the H-1B cap. Other petitions that qualify for a statutory cap exemption likewise would remain outside the fee’s reach.
What’s Next?
The proposed rule is now open for a 30-day public comment period, giving employers, industry groups, nonprofits, health care systems, educational institutions, and other stakeholders an opportunity to provide feedback on the proposal’s potential economic and workforce impacts.
Several key issues remain unresolved and could change before a final rule is issued, including the ultimate fee amount, whether any exemptions or reduced fees will be introduced, the likelihood of legal challenges, and when the rule would ultimately take effect.
What Employers Should Do Now
Though the proposal is not yet in effect, employers that use or anticipate using the H-1B program should consider taking the following steps:
- Review anticipated H-1B hiring needs for future cap seasons.
- Assess the potential budget impact of a significant increase in sponsorship costs.
- Evaluate retention strategies for existing foreign national employees.
- Determine whether any current or future positions may qualify for cap-exempt sponsorship.
- Explore alternative immigration options where appropriate.
- Consider participation in the public comment process.
Although the rule is still in the proposal stage and may change before becoming final, organizations that rely on foreign national talent should begin evaluating the rule’s potential operational and financial impact now. We will continue to monitor developments and provide updates as additional information becomes available.
If you have any questions, or would like additional information, please contact one of the attorneys on our Immigration team.
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