Yesterday, the Department of Homeland Security published a Notice of Proposed Rulemaking implementing a $103,265 fee for cap subject H-1B petitions for federal fiscal year 2028. This is the Trump Administration’s second attempt to levy a six-figure fee on H-1B visas. On June 8, 2026, the US District Court for the District of Massachusetts struck down the Trump Admiration’s previous $100,000 H-1B visa fee, holding that it was a tax not authorized by Congress.
There are some key differences between the enjoined $100,000 H-1B visa fee and the new $103,265 fee. The first one is the amount. The District Court found that the prior visa was a tax because the Trump Administration used its powers to restrict entry to the United States to implement the fee, and that the amount of the fee was a made-up number, untethered to reality. The new $103,265 fee draws on DHS’ powers to collect fees to fund its operations. While USCIS’ operations are generally self-sustaining, the new fee purports to raise $8.7 billion in revenue to replace funds appropriated by Congress for asylum-related operations.
The second big change is the scope of the fee. The old $100,000 H-1B fee was assessed against any H-1 petition that required a visa to be issued abroad. Foreign nationals presently in the United States seeking to extend H-1B status or change to H-1B status were exempt from the fee. The new $103,265 fee applies to all cap subject H-1B petitions, regardless of the location of the foreign national employee. Federal law limits the number of new H-1B visas issued each year to 85,000. While most employers are required to apply for one of the 85,000 cap H-1B visas, not all employers are required to draw a visa from the cap. Governmental, academic, and certain research employers are exempt from the cap. Additionally, foreign national employees who have already been counted against the cap and are merely changing employers are exempt from the cap, even if the employer is otherwise subject to the cap. H-1B petitions that are not subject to the cap are not subject to the $103,265 fee.
The third big change is timing. The old $100,000 H-1B visa fee was promulgated by Presidential Proclamation on a Friday and went into effect the next Monday. The new $103,265 fee has a longer implementation timeline. The new fee was promulgated by Notice of Proposed Rulemaking. It goes into effect in 30 days. In reality, employers will have six months to plan for this new fee. The new fee affects H-1B visas to be issued in federal fiscal 2028. Processing for these visa starts in March of 2027. Additionally, the six-month timeline gives potential litigation challenging the legality of the new fee the chance to develop.
The largest domestic users of cap subject H-1 visas are employers of recent graduate F-1 foreign students. Employers that wish to retain these employees beyond the expiration of the F-1 visa typically apply for a cap subject H-1 visa. Employers contemplating filing H-1B cap subject visa petitions in March, 2027 should reach out to counsel to see what effect this new fee will have. Additionally, this blog will continue to follow developments in H-1B visa practice as they arise.
