After the Proclamation Falls, the Rulemaking Rises
In September 2025, the Trump administration tried a shortcut. By presidential proclamation, it slapped a $100,000 payment requirement on cap-subject H-1B petitions, skipped notice-and-comment, and skipped a traditional cost justification. DHS and USCIS treated the proclamation as enough authority and began collecting the money.
In June 2026, a federal judge in the First Circuit said no, ruling the proclamation-based fee unlawful and cutting off the revenue stream, as reported by the Associated Press.
Seven weeks later, on August 25, 2026, the same policy goal reappeared in a more conventional outfit. DHS published a notice of proposed rulemaking in the Federal Register proposing a $103,265 fee on the same cap-subject H-1B petitions, now with a cost study, a docket number (USCIS-2026-0298), and a 30-day comment period that closes September 24, 2026.
DHS estimates roughly $8.8 billion in annual revenue from the fee. The administration has learned from the loss. Whether the proposal survives its own litigation cycle is another matter.
The proposed fee sits in the Federal Register as the innocuously titled “Fee for Certain H-1B Petitions,” 91 FR 54817, RIN 1615-AD20. The USCIS bulletin announcing it uses calmer language than the political rollout that preceded the 2025 proclamation, but the basic architecture is the same: a six-figure price tag aimed squarely at the capped segment of the H-1B market.
This time, however, it arrives with the procedural trappings that courts expect. There is a published methodology. There is a public docket. There is at least a gesture at economic analysis. It looks less like a campaign press release and more like a revenue regulation.
What the Proposed Fee Covers and Who Pays It
DHS is explicit about the scope. The proposed $103,265 fee applies to cap-subject H-1B petitions, meaning the filings an employer submits when it wants one of the 65,000 regular cap numbers or one of the 20,000 advanced degree set-asides. It does not touch cap-exempt petitions filed by institutions of higher education, nonprofit research organizations, or governmental research organizations, which keep their current fee structure. The new amount would be due at filing, in practice from the petitioner, and would stack on top of the existing menu of charges.
Those existing costs are already familiar to anyone who files H-1Bs for a living. There is the I-129 base fee. There is the ACWIA training fee, which runs up to $1,500 depending on employer size. There is the $500 fraud prevention and detection fee. There is the asylum program fee that USCIS added in its broader fee rule. For employers who need predictability, there is premium processing.
DHS treats the new $103,265 figure as just one more line item in this stack, but the arithmetic looks different in the real world. A company sponsoring a worker under the proposal would face a government filing cost that clears $105,000 before attorney fees. That is not a filing fee in any normal sense. It is an entry tariff.
The Legal Backstory
The reason this policy is coming back as a proposed rule instead of another proclamation is simple: the first attempt collided with separation of powers.
On September 19, 2025, President Trump issued a proclamation titled “Restriction on Entry of Certain Nonimmigrant Workers,” which included a $100,000 payment requirement tied to specific H-1B petitions. That document did not run through the Administrative Procedure Act, and it did not pretend to be a fee rule. DHS treated it as binding anyway and began collections.
Litigation followed almost immediately. As AP reported, a federal judge in June 2026 struck down the proclamation-based fee as an overreach of executive authority and blocked its enforcement. DHS did not concede.
In coverage from Bloomberg Law, the agency defended the payment as something less than a tax and urged the First Circuit to let collections continue while the appeal played out. The court declined to restore the fee.
At that point, the administration had two choices: ride out the appellate process or route the policy through the machinery that Congress actually assigned to fee setting. It chose the second.
The proposed rule in 91 FR 54817 includes a calculated amount of $103,264.57, rounded to $103,265, a cost study, and a public docket. It rests on USCIS fee authority rather than on a generalized presidential power over entry. That makes it procedurally more durable than the 2025 experiment, though not insulated from challenge.
The potential attack lines are not exotic. Commenters will have questions about the cost model, the choice of payers, and the alignment with the agency’s statutory mandate to recover costs rather than generate free-standing revenue streams. Any eventual lawsuit will frame those questions as Administrative Procedure Act problems and ask a court to decide whether the agency crossed the line from fee setting into policy making that lacks a firm statutory hook.
For now, DHS is busy papering the record that the proclamation never had.
What $8.8 Billion Buys
DHS estimates that the proposed fee would generate about $8.8 billion per year, with roughly $74.9 billion projected over ten years, as reported by Fortune. In the proposed rule, the agency frames this as cost recovery across DHS and other parts of the immigration machinery.
The math is straightforward on paper: take projected total recoverable costs, divide by the projected volume of cap-subject H-1B petitions that would owe the fee, and call the result a cost-based amount.
What the documents do not do is spell out in granular detail which programs and operations would live off this revenue or how it interacts with the rest of the USCIS fee schedule. Historically, USCIS has operated on a budget in the $4 billion to $5 billion range, funded almost entirely by filing fees.
Against that backdrop, $8.8 billion per year from one fee on one subset of one visa category looks less like a user charge and more like a policy tool in search of legal justification.
The Exemption That Matters
The most structural choice in the proposal is the cap exemption. Universities, nonprofit research institutions, and governmental research entities are carved out. The fee lands instead on for-profit petitioners that need cap numbers: technology companies, consulting shops, staffing firms, financial institutions, and the rest of the private sector that relies on capped H-1Bs. That design does not happen by accident.
For years Congress and DHS have used H-1B surcharges on for-profit employers to subsidize training and other programs, while preserving easier pathways for academic and nonprofit employers. The proposed $103,265 fee keeps that asymmetry and pulls it to an extreme.
Academic and nonprofit hiring channels stay under the old fee logic. Cap-subject corporate sponsorship moves into a different economic universe. Whether one sees that as a labor market correction or as a selective barrier depends on policy priors, but the functional outcome is the same: for-profit demand for capped H-1Bs is the chosen revenue base.
What Happens Next
The comment period on the proposed rule runs through September 24, 2026. DHS will then sift through submissions, prepare responses, and decide whether to adjust the proposal before issuing a final rule with an effective date.
At that point, the fight would shift from the White House and DHS press shops to the Administrative Procedure Act framework that governs challenges to federal regulations.
Unlike the 2025 proclamation, a final rule would arrive with a cost study, a paper trail, and a comment record. That makes it more defensible in court but not untouchable. The H-1B program has drawn lawsuits from employers, workers, and restrictionist groups for years.
If DHS finalizes a six-figure fee on cap-subject petitions, it will add one more high-stakes test of how far agencies can push revenue strategies under the label of cost recovery.
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