If you are filing an I-140 for a national interest waiver or an EB-1A petition, the H-1B fee rule DHS proposed on Aug. 24 does not charge you anything. The $103,265 fee applies only to cap-subject H-1B petitions. But the legal theory the rule advances is broader than the fee it imposes, and that is the part worth reading.
The claim
Every USCIS fee rule until now has been built on a narrow premise: fees recover USCIS’s costs of adjudicating benefit requests. This rule abandons that premise. It routes money to ICE, CBP, the Justice Department’s immigration courts, the State Department and the Labor Department — agencies that do not adjudicate H-1B petitions.
To justify that, DHS reinterprets INA section 286(m), 8 U.S.C. 1356(m), which allows the Secretary to set fees “at a level that will ensure recovery of the full costs of providing all such services,” including services provided without charge. The rule states DHS’s position: the best reading of the statute is that it authorizes DHS to set fees to recover all of the costs for the lawful immigration program from fee-paying applicants and petitioners.
It pairs this with INA section 286(n), which allows reimbursement of “any appropriation” for amounts spent providing adjudication and naturalization services — the mechanism by which USCIS would write reimbursable agreements with the other five agencies.
Why the scope is larger than the fee
The rule is explicit that it applied this authority narrowly by choice, not by legal constraint. DHS writes that “consistent with its broad authority under the INA and HSA,” it is “proposing the additional fee to only apply to H-1B cap-subject petitions and not to all H-1B petitions, or all I-129 petitions.”
That is a discretionary limit. The stated authority — recovering the full costs of the immigration system, across agencies, from fee-paying filers — is not H-1B-specific on its own terms. The same reading of section 286(m) would support loading system-wide costs onto any fee-bearing form, including the I-140, the I-485, the I-765 or the I-131.
DHS also explains why it chose H-1B rather than a broad increase: spreading the costs across all applicants “would place additional costs on individual applicants and petitioners who may have fewer resources available to absorb additional fee increases.” The reasoning turns on ability to pay, which is a policy judgment DHS can revisit in a later rule.
What to watch
Three things will determine whether this theory sticks. Comments: the docket is USCIS-2026-0298, open for 30 days after the Aug. 25 publication. Litigation: the cost-allocation theory is the natural target, and the administration’s earlier $100,000 H-1B payment under Proclamation 10973 was already vacated at the district court level in June. Precedent: if a final rule adopting this approach survives, the framework for setting every future USCIS fee changes.
For NIW and EB-1A filers, nothing changes today. What changes is the range of what a future fee rule can be built on.
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