Today, the Department of Homeland Security (DHS) published a proposed rule that would impose a new $103,265 government filing fee on H-1B cap-subject petitions, including petitions filed under the regular H-1B cap and the U.S. master’s cap. The proposed fee would be in addition to all existing H-1B filing fees.
The proposal has generated significant attention throughout the immigration and business communities because of its potential impact on future H-1B filings. However, it is important to note that this is only a proposed rule and is not currently in effect. DHS must complete the rulemaking process, review public comments, and issue a final rule before any new fee could be implemented.
Under the proposal, the fee would apply to H-1B petitions that are subject to the annual H-1B cap, including petitions requesting either change of status or consular processing. The proposal would not apply to cap-exempt H-1B petitions, including change of employer and extension applications, as well as many university and nonprofit research organization filings.
At this stage, employers should view this as an early development rather than a change requiring immediate action. The proposal will be subject to a public comment period, and we expect significant legal challenges if a final rule is issued. Multiple organizations and stakeholders are already evaluating the proposal and its legal basis.
We recommend making no changes for now.
At this time, we recommend continuing with normal workforce planning and preparing for the FY 2028 H-1B cap season as usual.
There are several procedural and legal hurdles that remain before any new fee could affect H-1B filings, and we anticipate additional guidance and developments over the coming months.
Graham Adair is continuing to monitor this development closely and is actively reviewing the proposed rule and its potential impact on employers. We will provide updates as additional information becomes available.
If you have questions regarding your organization’s H-1B program or workforce planning, please contact your Graham Adair attorney.