The image of the H-1B cap as the preserve of large technology companies does not survive contact with the government’s own data. In the regulatory flexibility analysis accompanying its Aug. 24 proposal for a $103,265 H-1B cap fee, DHS published a breakdown of who actually files.
The filer population
In fiscal year 2025, 28,649 unique petitioners filed cap-subject H-1B petitions. Of those:
- 14,541 (51%) were determined to be small entities based on revenue or employee data
- 8,758 (31%) were non-small entities
- 5,350 (18%) lacked the revenue, employee-count or NAICS data needed to classify them
Of the 14,541 small entities, 11,312 met the Small Business Administration’s revenue threshold and the remaining 3,229 qualified on other grounds.
The impact DHS concedes
DHS’s own accounting statement states that the proposed rule “would result in a significant economic impact on 11,051 small entities (76 percent of small entities that filed cap-subject petitions in FY 2025) due to additional fees proposed in this rulemaking.”
That is not a critic’s estimate. It is the agency’s finding under the Regulatory Flexibility Act, printed in the rule.
DHS also expects filings to fall
The rule acknowledges the behavioral consequence twice. DHS writes that it “acknowledges that USCIS may see a reduction in the number of H-1B cap registrations and some employers, including small entities, may file fewer petitions as a result of this proposed rule.”
It then flags the fiscal risk this creates for the government’s own plan: the projected $8.78 billion in annual revenue “depends on the filing volumes of cap-subject H-1B petitions not falling short of those projected herein.” The revenue math assumes 85,000 petitions a year. If the fee suppresses demand enough that fewer petitions are filed, the agencies counting on that money — including the immigration courts, which are slated for roughly a third of it — would come up short.
The affordability assumption
DHS states its premise directly: it “believes that cap-subject H-1B petitioners are willing to pay and can afford an additional $103,265 fee.” The rule explains that DHS considered spreading the cost across all fee-paying applicants and petitioners instead, but decided against it because that “would place additional costs on individual applicants and petitioners who may have fewer resources available to absorb additional fee increases.”
The affordability premise, applied to a filer population that is majority small business, is the argument most likely to draw substantive comment. Cap-exempt employers — universities, university-affiliated nonprofits, nonprofit and governmental research organizations — would not pay the fee at all, which concentrates the burden further on the commercial employers who file in the lottery.
Comments are due 30 days after the rule’s Aug. 25 publication, through regulations.gov under docket USCIS-2026-0298.
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