Buried in the tables of the H-1B fee rule DHS filed on Aug. 24 is the detail that makes it unusual: most of the $8.78 billion the fee would raise each year would never reach the agency that adjudicates H-1B petitions.
Historically, USCIS fee rules have recovered only USCIS costs. This proposal breaks that pattern. DHS invokes INA sections 286(m) and 286(n) — which let the Secretary set fees to recover “the full costs” of adjudication and naturalization services and to reimburse other appropriations — to route H-1B money to five other agencies.
Where the money goes
Table 11 of the proposed rule lays out the split of the projected $8,777.5 million in annual revenue:
| Agency | Share | Annual allocation |
|---|---|---|
| USCIS | 34.2% | $3,000.0M |
| EOIR (immigration courts) | 33.7% | $2,956.9M |
| DOL | 13.8% | $1,210.4M |
| ICE | 11.9% | $1,050.0M |
| DOS | 5.5% | $484.0M |
| CBP | 0.9% | $76.2M |
8,400 new immigration court positions
The single largest non-USCIS line is the Justice Department’s Executive Office for Immigration Review. The rule proposes about $3.0 billion for EOIR — $1.9 billion in personnel, $748.1 million in court-related non-personnel costs, and $318.8 million in adjudicatory non-personnel costs.
That personnel money would fund approximately 8,400 additional positions, organized around immigration judge teams: immigration judges, attorneys, legal administrative specialists and legal assistants, administrative staff, and law-related support. In plain terms, employers hiring cap-subject H-1B workers would bankroll a large expansion of the removal-hearing system — a system that has nothing to do with H-1B adjudication.
ICE, DOL, CBP and State
The ICE allocation breaks down as $900 million for “vetting of aliens pending adjudication,” $100 million for vetting applicants for admission, and $50 million for the Student and Exchange Visitor Program. The Labor Department’s $1.21 billion covers prevailing wage programs ($70.5M), the H-2A program ($136.6M), H-2B and CW-1 ($128.6M), the Wage and Hour Division ($350.0M), and the Office of the Solicitor ($350.0M). CBP’s small $76.2 million share funds expansion of the Traveler Verification Service biometric matching system.
DHS anticipates the objection
The rule addresses the obvious complaint head-on. DHS writes that it “realizes that some petitioners will object to funding the costs of non-USCIS administered programs to which they have no connection or from which they receive no direct benefit,” but argues the agencies being funded all administer parts of the lawful immigration system, so fee revenue “should be used to reimburse those programs.”
USCIS would execute reimbursable agreements with each agency under INA section 286(n). This cost-allocation theory is likely to be a central target of comments and of any litigation that follows. Comments are due 30 days after the rule’s Aug. 25 publication, under docket USCIS-2026-0298.
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