1. What Is the Current Legal Status of the H-1B $100K Fee?
The $100,000 payment created through the presidential proclamation is not currently being collected under the agency policies that federal courts have blocked. The litigation remains active, so the current result should not be confused with a final end to every legal dispute over the policy.
Massachusetts Ruling and Pending Appeal
On June 8, 2026, the U.S. District Court for the District of Massachusetts vacated agency actions implementing the $100,000 payment.
The government appealed. On July 24, the First Circuit denied the government's request to stay the district court judgment while the appeal proceeds. That order kept the district court relief in effect, but the court of appeals did not decide the merits of the appeal at that stage.
Employers preparing an H-1B visa petition should therefore distinguish the current filing requirement from what could happen later in the appellate case.
September 30 California Ruling
On September 30, 2026, the U.S. District Court for the Northern District of California separately blocked federal agencies from implementing the $100,000 payment policies.
That ruling also addressed implementation under the September 2026 extension of the proclamation. The court focused on the agencies' failure to use required rulemaking procedures.
The proclamation and the policies used to enforce its payment requirement are not the same legal instrument. That distinction matters when tracking future appeals or agency action.
2. How Are the Two H-1B Fee Policies Different?
The $100,000 payment and the proposed $103,265 fee are separate policies. They were created through different legal mechanisms, target different H-1B filings, and do not currently impose the same obligations on employers.
Different Legal Sources and Current Status
The $100,000 payment arose from a presidential proclamation and related agency implementation. Federal courts have blocked the policies used to implement that payment.
The $103,265 fee follows a different path. DHS proposed it through notice-and-comment rulemaking rather than relying on the proclamation.
| Issue | $100,000 Payment | $103,265 Proposed Fee |
|---|---|---|
| Legal source | Presidential proclamation and agency implementation | DHS notice-and-comment rulemaking |
| Current status | Agency implementation blocked by federal courts | Proposed rule, not currently due |
| Main scope | Certain H-1B cases covered by proclamation policies | Proposed for cap-subject H-1B petitions |
| Advanced-degree cap | Depends on proclamation scope | Expressly included in proposal |
| Current payment required | No, under the blocked policies | No, proposal is not final |
Legal source
- $100,000 PaymentPresidential proclamation and agency implementation
- $103,265 Proposed FeeDHS notice-and-comment rulemaking
Current status
- $100,000 PaymentAgency implementation blocked by federal courts
- $103,265 Proposed FeeProposed rule, not currently due
Main scope
- $100,000 PaymentCertain H-1B cases covered by proclamation policies
- $103,265 Proposed FeeProposed for cap-subject H-1B petitions
Advanced-degree cap
- $100,000 PaymentDepends on proclamation scope
- $103,265 Proposed FeeExpressly included in proposal
Current payment required
- $100,000 PaymentNo, under the blocked policies
- $103,265 Proposed FeeNo, proposal is not final
A court ruling affecting the proclamation payment does not automatically resolve the separate DHS rulemaking process.
Which H-1B Petitions Would Each Policy Cover?
The two policies also differ in scope. The proclamation payment applies according to the conditions established by the proclamation and its implementing policies.
The DHS proposal instead focuses on cap-subject H-1B petitions. It would include petitions under the advanced-degree exemption but would not turn every H-1B extension, amendment, transfer, or otherwise cap-exempt filing into a covered petition.
Employers therefore need to identify the petition category and the beneficiary's cap history before estimating potential future filing costs.
Is the $103,265 Fee Currently Required?
No. DHS published the proposed fee rule on August 25, 2026, and the public comment period closed on September 24, 2026.
Closing the comment period did not make the proposed fee effective. DHS would need to complete the rulemaking process and issue a final rule before the proposal could create a filing obligation.
As of October 2, 2026, employers should not include the $103,265 amount as a current mandatory H-1B filing fee. The final amount, scope, and effective date could also differ from the proposal.
3. Which H-1B Filings Could Be Affected by the Proposed Fee?
The proposed $103,265 fee turns on whether the petition is cap-subject. A worker's occupation, salary, physical location, or employer size does not by itself answer that question.
New Cap-Subject Petitions
If DHS finalizes the proposal substantially as written, new cap-subject petitions would fall within its stated scope. Advanced-degree cap petitions would also be included.
Employers hiring H-1B professionals through the annual cap process should separate registration planning from the later petition fee question. A proposal does not create a payment obligation before a final rule takes effect.
Transfers, Extensions, and Cap-Exempt Cases
An extension, amendment, or change-of-employer petition for a beneficiary who has already been counted against the cap is generally not a new cap-subject petition. The worker's cap history still needs to be confirmed.
Certain employers and petitions may also qualify for statutory cap exemptions. HR teams should not label a filing cap-exempt solely because a prior H-1B petition was approved.
For employers managing several sponsorship types, broader business immigration review can help separate future cap filings from transfers, extensions, and other petition categories.
4. What Dates and Policy Changes Should Employers Monitor?
The legal position can change between workforce planning and the filing date. Employers should use the rule in force when the petition is actually prepared and filed, not a headline or proposal from an earlier stage.
The Proposed Fee Has Not Taken Effect
The September 24 comment deadline closed the public participation period on the proposed $103,265 fee. It did not make the proposal effective.
DHS would need to complete the rulemaking process and publish a final rule before the proposed fee could become a filing requirement. The final text could also differ from the proposal.
Litigation Can Change the $100K Fee Analysis
The Massachusetts appeal remains important because the First Circuit's July ruling addressed a stay request rather than finally resolving the merits.
The September 30 California ruling adds a separate barrier to implementation. A later appellate order or other court action could change the legal position, so employers should verify current requirements close to filing.
Companies with recurring H-1B filings may also need immigration compliance procedures that distinguish confirmed government fees from proposed or litigated policies.
5. Frequently Asked Questions
Who Would Pay the Proposed $103,265 H-1B Fee?
The proposed rule places the additional fee on the petitioner filing the cap-subject H-1B petition, ordinarily the sponsoring employer.
An employer should not assume that a required petition expense can simply be transferred to the employee. H-1B wage and deduction rules may affect whether an employer can recover particular business expenses from a worker. Any reimbursement arrangement should be reviewed under the rule actually in effect.
Does Being in the United States Avoid the Proposed H-1B Fee?
Not necessarily. The DHS proposal focuses on whether the petition is cap-subject, not simply where the beneficiary is physically located.
An H-1B professional in the United States could still be connected to a cap-subject filing. A worker outside the United States could instead be the beneficiary of a filing that is not cap-subject. The petition category and cap history matter more than location alone.
6. When Should an H-1B Fee Issue Be Reviewed before Filing?
Legal review may be useful when an employer or H-1B professional cannot determine whether a petition is cap-subject, when HR is budgeting for future cap-season sponsorship, or when a court ruling or final rule appears shortly before filing.
An immigration attorney can distinguish a current filing obligation from a proposed or blocked policy, review the beneficiary's cap history, and identify which government fee rules apply to the petition being prepared. The review should focus on the rule in effect at filing rather than assuming that a proposed fee or earlier court decision remains unchanged.
02 Oct, 2026
