Current as of September 15, 2026: H-1B fees, litigation and presidential actions can change quickly. Employers should check the USCIS fee schedule and the latest court record again before filing.
The new H-1B fee proposal has created a serious budgeting question for employers and F-1 graduates hoping to move from OPT to H-1B status. On August 25, 2026, DHS proposed an additional $103,265 fee for every cap-subject H-1B petition. The proposal would add that amount to the fees already required for the filing. It is not in effect today.
The separate $100,000 payment discussed in many headlines came from Presidential Proclamation 10973. A federal court vacated the agency policy that implemented that payment, and the First Circuit declined to restore it while the appeal continues. In addition, the proclamation expires around 12:01 a.m. Eastern Time on September 21, 2026 unless the President extends it. Treating these two figures as a current $203,265 charge would therefore be inaccurate.
Is the $100,000 H-1B payment currently in effect?
President Trump signed Proclamation 10973 on September 19, 2025. It took effect at 12:01 a.m. EDT on September 21. The official text restricted the entry of certain H-1B workers unless the relevant petition was accompanied or supplemented by a $100,000 payment. Agency guidance focused on new cases for beneficiaries outside the United States who would seek admission.
On June 8, 2026, the U.S. District Court for the District of Massachusetts ruled in State of California v. Mullin that the agency implementation policy was unlawful and vacated it in full. The government appealed. On July 24, the First Circuit denied the government’s stay request. As a result, the implementation policy remains vacated, and USCIS is not collecting the payment as of the date of this article.
There is a legal nuance worth preserving. The district court vacated the agency policy used to carry out the proclamation; it did not simply delete the presidential document from the books. The merits appeal is still pending. Yet the proclamation also contains its own 12-month clock. That period began on September 21, 2025 and, without a new presidential action, ends around September 21, 2026.
What is the proposed $103,265 H-1B fee?
The Federal Register proposal titled “Fee for Certain H-1B Petitions”, DHS Docket No. USCIS-2026-0298, would establish a separate $103,265 filing fee for cap-subject H-1B petitions. DHS says the revenue would help recover part of the cost of administering the lawful immigration system across USCIS, ICE, CBP, the Department of State, the Department of Labor and EOIR.
The document is a notice of proposed rulemaking. Publication does not activate the fee. DHS must complete the public-comment process, consider relevant submissions and publish a final rule that explains any effective date and transition provisions. The official notice invites comments through September 24, 2026 on regulations.gov.
If finalized as proposed, the employer would pay the fee when filing Form I-129, in addition to other applicable charges. Using an annual volume of 85,000 cap-subject filings, DHS estimates about $8.8 billion in yearly revenue. The agency also acknowledges that the proposal could have a significant economic effect on many small employers.
Which filings would the H-1B fee proposal cover?
The proposal covers petitions subject to the regular 65,000 H-1B cap and petitions using the 20,000 U.S. advanced-degree exemption. A notable feature is that an in-country change of status from F-1 to H-1B would not be excluded merely because the beneficiary is already in the United States. If the petition uses a new cap number, the proposed fee could apply.
That reach differs from the $100,000 proclamation payment. Agency implementation of the proclamation centered on entry and certain new workers outside the United States. The proposed rule focuses on whether the petition is cap-subject, not simply where the beneficiary is located.
Under the proposal’s current text, the additional fee generally would not apply to:
- Petitions by cap-exempt institutions of higher education, affiliated nonprofits, nonprofit research organizations or governmental research organizations.
- Extensions for workers who have already been counted against the cap and do not need a new cap number.
- Changes of employer and similar H-1B filings that do not require the beneficiary to be counted again.
However, a filing label such as “transfer” does not decide the issue by itself. Counsel should confirm the beneficiary’s cap history, the employer’s exemption and the classification requested. The final rule may also change the proposed scope.
Comparing $100,000 and $103,265
The $100,000 payment originated in a presidential entry restriction. It had a 12-month term, became the subject of litigation and is not currently being collected because the implementation policy was vacated. The $103,265 figure comes from a DHS rulemaking that relies on fee-setting authority and remains open for public comment.
The coverage also differs. The proclamation policy focused on certain new H-1B workers outside the country. The proposed fee could reach cap-subject change-of-status cases filed for F-1 graduates inside the United States. Conversely, it expressly excludes cap-exempt petitions.
Timing creates a third distinction. The proclamation payment is blocked and is approaching its stated expiration. The new proposal has no force unless DHS completes rulemaking and a final rule takes effect. The proposed-rule text says that, if both obligations ever applied to the same filing, they would be separate. As of September 15, however, there is no combined $203,265 payment due.
What should employers do now?
First, classify each planned filing accurately. “H-1B” is not a complete budget category. An initial cap petition, cap-exempt petition, extension, change of employer and consular case can produce different fee results. For internal forecasting, list $103,265 as a regulatory-risk scenario rather than an amount currently owed.
Second, employers may consider commenting by September 24. A useful comment does more than state support or opposition. It identifies a provision, supplies concrete evidence about hiring, payroll, project continuity, small-business impact or alternative costs, and proposes a workable change. The notice requires comments in English or with an English translation.
Third, calculate current fees through the official USCIS Form G-1055 Fee Schedule on the actual filing date. Depending on the petition, the package may include the base I-129 fee, ACWIA fee, fraud-prevention fee, asylum program fee, premium processing and, for some employers, a 9-11 biometric fee. Not every charge applies to every case.
For an overview of the petition process, employers and workers can review Clinch Law’s H-1B visa guide. Because older articles can contain historic fee figures, the official G-1055 should control on the filing date.
What does the proposal mean for F-1 and OPT graduates?
For an F-1 graduate, the central issue is that the proposal does not categorically exempt an in-country change of status. If an employer files a cap-subject petition after selection, that employer could face the added charge if DHS finalizes the rule substantially as written. The effect may be especially significant for startups and other small organizations.
Still, a proposed fee is not a reason to abandon an OPT plan or job offer today. The employer may be cap-exempt, the beneficiary may already have been counted, or the final rule may change the amount, scope or effective date. Those facts should be confirmed before decisions are made.
Alternative classifications are not automatic substitutes. O-1A requires evidence of extraordinary ability. L-1 depends on a qualifying corporate relationship and prior employment abroad. EB-2 NIW has separate immigrant classification and evidentiary requirements. Readers considering a longer-term strategy may consult Clinch Law’s EB-2 NIW profile guide and its analysis of private-sector EB-2 NIW cases, while recognizing that neither replaces an H-1B status analysis.
Frequently asked questions
Is the $103,265 H-1B fee payable today?
No. As of September 15, 2026, it appears only in a proposed rule. It does not become a filing obligation unless DHS publishes a final rule and that rule takes effect.
Is the proposed fee the same as the $100,000 payment?
No. They have different legal sources, scopes and timelines. A court vacated the policy implementing the $100,000 payment. The $103,265 charge remains a proposal open for comment.
Would an F-1 to H-1B change of status be exempt?
The current proposal does not generally exclude cap-subject change-of-status petitions filed inside the United States. The result may differ if the worker has already been counted or the employer is cap-exempt.
Would extensions and H-1B transfers be covered?
Extensions and changes of employer that do not require a new cap number are not the proposal’s target. The person’s cap history and the precise request should still be reviewed.
Can an employer comment after September 24?
The official comment deadline is September 24, 2026. A late submission may fall outside the agency’s obligation to consider comments, so filers should follow the docket instructions and deadline.
Bottom line
The two six-figure amounts in the H-1B news are not interchangeable. The $100,000 proclamation payment is not currently being collected, remains on appeal and is close to its stated expiration unless extended. The $103,265 H-1B fee proposal is still a draft, with comments due September 24.
Employers should calculate today’s fees from the official USCIS schedule, model the proposal as a possible future cost and confirm cap status before changing a hiring plan. F-1 graduates should also avoid assuming that an in-country filing will necessarily be exempt if the proposal becomes final.
Legal information notice
This article provides general information, not legal advice for a particular employer or worker. Filing fees can depend on petition type, cap history, employer status and the rules in force on the filing date. No result or visa approval is guaranteed.
