In a Notice of Proposed Rulemaking published August 25 and highlighted by Duane Morris LLP on September 23, the Department of Homeland Security proposes levying a staggering US$103,265 on every new H-1B petition that counts toward the annual quota. The fee would sit on top of existing USCIS filing fees, anti-fraud fees and ACWIA surcharges, pushing the all-in cost of a single petition well above US$110,000. DHS argues that the charge is authorised by INA §286(m), which permits the agency to recover the ‘full costs’ of immigration adjudication. Critics note, however, that more than half of the projected US$8.8 billion in annual revenue would be siphoned to programs unrelated to H-1B processing—such as refugee resettlement and immigration-court operations—raising a ‘fee-versus-tax’ problem that almost invites litigation. Employers, universities and tech associations are expected to flood regulations.gov with objections before the expedited comment deadline of September 24, 2026. If finalised, the rule would reshape corporate mobility budgets overnight. Companies that routinely file dozens—or hundreds—of cap registrations each March would face nine-figure exposure. Even smaller employers could find the H-1B route economically non-viable, accelerating the shift toward near-shoring, remote work abroad or alternative visa classes such as L-1, O-1 and TN. Cap-exempt institutions (universities, non-profit research bodies, etc.) would escape the new levy, potentially making academia the only affordable on-ramp for high-skilled foreign talent. The proposal lands amid parallel fee pressures: a still-litigated US$100,000 presidential entry fee (see separate story) and a long-stalled USCIS user-fee rule that would raise standard I-129 filing costs 70 percent. Taken together, employers could soon face the most expensive sponsorship environment in the 33-year history of the H-1B program. Action items for mobility leaders include modelling cumulative petition costs under different head-count scenarios, assessing cap-exempt strategies and preparing executive briefings on workforce impacts. Legal teams should also watch for inevitable lawsuits arguing that DHS lacks clear statutory authority and that the rule violates the ‘major-questions’ doctrine recently favoured by the Supreme Court.
Source: Mondaq / Duane Morris LLP
