On August 24, 2026, USCIS announced that it would introduce an additional filing fee of $103,265.00 to be added to H-1B cap-subject filings for consular notification or change of status applications which would become effective once USCIS regulations clear the formal rulemaking process. H-1B cap subject filings would affect all U.S. employers, apart from post-secondary institutions, including universities, hospitals and institutions of research. All other privately held businesses would be subject to the H-1B additional filing fee and the rule would not go into effect until after the rule is published in the Federal Register on August 25, 2026, public comments are reviewed and the agency finalizes its proposal into a final rule. Interestingly, this increased fee proposal was not included by USCIS’s regulatory agenda, which was released to the public in July 2026.

Background

The 85,000-visa annual H-1B cap, including 65,000 entries for professionals with U.S. bachelor’s degree or equivalent, and 20,000 for those in possession of U.S. advanced degrees (master’s degrees and higher) only has been in effect since the Immigration Act of 1990. The lottery was created in 2007 for the first time, and an electronic registration for the lottery was introduced in 2020.

Looking Ahead

The H-1B visa classification has been the subject of intense focus for many years, and the current administration recently introduced a $100,000.00 fee for all H-1B visas with consular processing. That proposal was challenged in federal court and is no longer applicable; likely the same fate will ensue with this proposal, although the argument advanced by the administration is that the fee would serve to underwrite other immigration costs agency wide. The agency assesses that the fees would raise $8.8 billion each year. However, only 34% would be directed to USCIS. Other fees raised would go to the immigration courts, DOL, ICE and the Department of State. The Department of Homeland Security has surmised that big business filers will ultimately fund other immigration-related costs for various parts of the agency.

There are no imminent changes to the regulations now, and most likely federal litigation will prevent implementation of the new fee, which might be construed as a tax, as the initial $100,000.00 fee was construed and ultimately rejected by the federal courts.

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The Business & Corporate Immigration practice at Tarter Krinsky & Drogin will continue to follow this update closely. If you have any questions or would like to discuss, please reach out to a member of our team.