If you have been trying to follow the H-1B fee story, you are not alone in finding it hard to track. The fee has been imposed, struck down, briefly reinstated, and struck down again since September 2025.

Here is the current status in one sentence: the original $100,000 fee cannot be enforced right now, and DHS has proposed a new $103,265 fee through a different legal process.

Below is what actually happened, what is proposed, and what it means for employers.

Where the Original Fee Stands

A quick recap of the timeline.

  • September 2025: President Trump issued Proclamation 10973, imposing a $100,000 payment on certain new H-1B petitions, mainly those requiring consular processing for beneficiaries outside the U.S.
  • June 8, 2026: A federal court in Massachusetts vacated the policy nationwide, finding the payment was an unlawful tax and that the agencies had violated the Administrative Procedure Act.
  • June 12 to July 24, 2026: The government appealed. The district court briefly paused its own ruling while the First Circuit considered an emergency stay.
  • July 24, 2026: The First Circuit denied the government’s stay request, finding the administration had not made a strong showing that it would succeed on appeal.

The result: USCIS cannot currently assess or collect the $100,000 payment. The vacatur is in full effect nationwide while the appeal continues on the merits.

There is a second timing factor worth noting. By its own terms, Proclamation 10973 was a 12-month measure set to expire on September 20, 2026, unless the administration extends or reissues it.

What DHS Just Proposed

On August 25, 2026, DHS published a notice of proposed rulemaking that would create a $103,265 fee on every H-1B cap-subject petition, payable at the time of filing.

This is not a revision of the old fee. It is a new, standalone charge pursued through formal rulemaking, which relies on entirely different legal authority than a presidential proclamation.

Who Would Pay

The fee would apply to:

  • Petitions filed under the regular 65,000 annual cap
  • Petitions filed under the 20,000 advanced degree exemption, often called the master’s cap

Who Would Not Pay

This is the part many of our clients will care about most. The proposal would not apply to:

  • Cap-exempt petitions, including universities, related nonprofit entities, nonprofit research organizations, and governmental research organizations
  • Extensions, amendments, or transfers for beneficiaries already counted against the cap
  • Other I-129 classifications

For healthcare employers, that distinction matters enormously. Many hospitals and health systems affiliated with universities file cap-exempt, and under this proposal they would be untouched.

The Numbers Behind It

DHS says the fee is designed to recover federal costs of administering the immigration system, estimating roughly $8.8 billion in annual revenue distributed across USCIS, the immigration courts, ICE, the Department of Labor, the State Department, and CBP.

DHS also acknowledges the impact would be significant, estimating that roughly 76 percent of small entities filing H-1B cap petitions would experience a substantial economic effect.

Could Employers Owe Both?

Potentially, yes. The proposed rule states that the new fee would be imposed in addition to all other applicable fees or payments, including any separate payment obligation required under a presidential proclamation.

In practice, that scenario would require the proclamation payment to be legally enforceable again, which it is not today.

What Happens Next

The $103,265 fee is not in effect. It is a proposal, and DHS must complete the rulemaking process before anything becomes final.

Here is the path forward:

  1. A 30-day public comment period follows publication. Employers, industry groups, universities, and health systems can submit feedback.
  2. DHS reviews comments and decides whether to issue a final rule, modify it, or withdraw it.
  3. Litigation is likely. The scale of the fee and the mechanics of the interagency revenue transfers are both areas where legal challenges would probably focus.

Meanwhile, the First Circuit will still rule on the merits of the original case, and the government could ask the Supreme Court to weigh in.

What Employers Should Do Now

If you have been holding H-1B petitions because of the $100,000 fee, you can move forward. The fee is currently unenforceable, and standard filing fees apply.

Practical steps:

  • Keep records of any fee you already paid. The court’s view of the payment as an unlawful tax could matter for future refund claims.
  • Confirm current requirements with counsel before filing. Agency websites and filing instructions sometimes lag behind court rulings.
  • Consider submitting a comment on the proposed rule during the 30-day window, especially if your organization would be affected.
  • Budget conservatively for FY2028 cap season. If the rule is finalized, cap-subject sponsorship costs change dramatically.
  • Determine whether you qualify as cap-exempt. If you do, this proposal would not reach you.

The Bigger Picture

It is reasonable to feel whiplash from all of this. But the pattern is clarifying: aggressive policy, legal challenge, and courts closely examining whether the government followed the process the law requires.

That process takes time, and time is something employers can use to plan.

We Are Here to Help

At Garvish Immigration Law Group, we are tracking both the litigation and the proposed rule closely. If you have questions about H-1B filings, cap-exempt eligibility, or how to plan your sponsorship strategy in this environment, we are here to help.

Reach out to us today.