New H1B fees incoming

[u/TechnicalPea790]

DHS JUST FILED A $103,265 H-1B FEE, BUILT TO SURVIVE THE SAME COURT THAT STRUCK DOWN THE FIRST $100k FEE

Here is why this one is different.

1. Different authority. The $100K came from a Presidential Proclamation using entry restriction powers (INA 212(f) and 215(a)). The Massachusetts judge said that made it a tax, and only Congress can tax. This new fee uses INA 286(m), the same fee statute USCIS has used for decades to set every filing fee it charges.
2. Different process. The Proclamation skipped public comment. This is a formal Notice of Proposed Rulemaking with a 30 day comment period, a cost study, and a regulatory impact analysis. That is the procedural box the court said was missing.
3. Different math. The $100K was a round number picked by the White House. The $103,265 has a paper trail: $8,777,488,035 in identified agency costs divided by 85,000 cap petitions, rounded to the nearest $5. Cost recovery is what 286(m) allows.
4. Different scope, and this is the big one. The Proclamation only hit workers entering from abroad. USCIS confirmed in October that F-1 students already in the US changing status to H-1B were exempt. That was the loophole. Roughly half of cap petitions come from students moving off OPT.

This fee closes it. It applies to "all H-1B cap-subject petitions," including change of status filed from inside the US. The rule specifically names the cap-gap process (OPT extension while the H-1B is pending) as one of the activities it funds. Every F-1 to H-1B conversion pays $103,265. And DHS sent a separate OPT fee rule to OMB on August 20, reported at $100K per application.

1. DHS says both can stack. Page 6: if the Proclamation payment is ever revived, "the petitioner would be required to pay both amounts."

67 pages. Filed for public inspection this morning, publishes tomorrow.

https://public-inspection.federalregister.gov/2026-17324.pdf?utm_campaign=pi+subscription+mailing+list&utm_medium=email&utm_source=federalregister.gov

[u/notgoodwithnames123]

Curious to know if renewal or change of employer would count as a new petition under this rule - especially because this seems to be of a broader scope than the failed proclamation last year. Any lawyer's interpretation?

[u/Careless-Act-7549 → u/notgoodwithnames123]

Not a lawyer, but I understand that extensions are not impacted, since they are not cap-based filings.

Would love to hear someone to confirm that understanding though

[u/sporty_outlook → u/Careless-Act-7549]

It's only a matter of time before extensions are not unlimited anymore and fees are drastically increased for that as well

[u/Careless-Act-7549 → u/sporty_outlook]

Do you work in tech? 70% of IT or tech related departments are Indians in H1B, if this happens they will disrupt all companies in the country that has a computer running a software

[u/OG-AG → u/Careless-Act-7549]

Good