The $103,265 H-1B fee DHS proposed on Aug. 24 is not the first six-figure charge the administration has tried to put on H-1B petitions. It is the second — and the rule is candid about the relationship between the two.
What happened to the first one
Presidential Proclamation 10973, Restriction on Entry of Certain Nonimmigrant Workers, 90 FR 46027 (Sept. 19, 2025), required a $100,000 payment tied to certain H-1B petitions filed on or after Sept. 21, 2025. It rested on the President’s entry-restriction authority under INA sections 212(f) and 215(a).
That approach ran into trouble. On June 8, 2026, the U.S. District Court for the District of Massachusetts vacated the agency guidance implementing the proclamation payment in California et al. v. Mullin, No. 25-13829. The government appealed to the First Circuit on June 11, 2026, and the rule states that appeal “remains pending as of the date of publication of this NPRM.”
The proclamation also has an expiration date. By its own terms it applied to petitions filed before Sept. 21, 2026, unless extended. A footnote in the new rule notes plainly that Proclamation 10973, “unless extended, will expire before the fee proposed in this rule will take effect.”
Different legal authority, similar number
DHS acknowledges in a footnote that “the proposed $103,265 fee is close to the $100,000 payment required by Proclamation 10973” — then immediately distinguishes it. The new fee is grounded in INA sections 286(j) and (m), the statutory fee-setting authority that lets the Secretary set fees to recover the full costs of adjudication and naturalization services. It is not an entry restriction.
That distinction matters in two ways.
First, it changes the litigation posture. A cost-recovery fee adopted through notice-and-comment rulemaking is a fundamentally different legal target than an entry restriction imposed by proclamation. Challengers would have to attack the cost allocation and the reasonableness of the amount, not presidential entry authority.
Second, it changes who gets caught. An entry restriction operates at the border — it reaches people who need to be admitted. A filing fee attaches to the petition itself, at the moment it is filed, regardless of where the beneficiary is standing. Every cap-subject petition owes it, including change-of-status petitions filed for people already inside the United States. For F-1 students on OPT who are selected in the lottery and change status without leaving, that is a meaningful difference from the proclamation regime.
And if both apply, you pay both
The rule leaves no ambiguity on stacking. The proposed fee would be owed “in addition to any other applicable fees or payments… including any separate payment obligation required under a Presidential Proclamation.” DHS writes that where a petitioner is subject to both a proclamation-required payment and this fee, “the petitioner would be required to pay both amounts.” DHS also states that if the district court’s order is later lifted, it would resume collecting the proclamation payment consistent with the proclamation’s terms “and any extension or renewal.”
Comments on the proposed fee are due 30 days after publication on Aug. 25, under docket USCIS-2026-0298.
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