The proposed $103,265 cap fee and what the first weighted selection taught employers

The H-1B cap was already an expensive lottery. In 2026 it became a weighted one, and DHS has now proposed that every petition filed from a selected registration should carry a fee larger than most of the salaries involved.

The proposal

In the notice published on 25 August 2026, DHS proposes a $103,265 fee, payable at filing, for all cap-subject H-1B petitions, including those counted against the advanced-degree exemption. It would be added to every other applicable fee and to any proclamation payment. Cap-exempt petitions would not carry it; DHS gives as its reason that many cap-exempt workers are employed by nonprofit research organisations, governmental research organisations and educational institutions. The stated purpose is to recover part of the cost of administering the immigration system across DHS, the Department of Justice, the Department of State and the Department of Labor. Comments closed on 24 September 2026. The fee is not in force, and practitioners expect litigation if it is finalised.

The selection it would sit on top of

The weighted selection rule, effective 27 February 2026, enters each registration into the pool according to the OEWS wage level of the offer: four times for Level IV, three for Level III, two for Level II and once for Level I. The FY2027 season was the first under it. As reported from USCIS figures, properly submitted registrations fell to about 211,600, from about 344,000 the year before.

The two measures interact. Weighting rewards higher wage levels, and wage levels themselves may rise under DOL's proposal discussed in the proposed wage rule. A fixed fee per petition then makes each selection far more expensive at the bottom of the scale than at the top.

What finance needs to see

• A per-hire cost that includes the proposed fee as a scenario, alongside the premium processing fee, which rose to $2,965 for I-129 petitions on 1 March 2026.
• The registration list sorted by wage level, because weighting changes the expected yield of each one.
• Alternatives for roles where the economics fail: cap-exempt employment, other classifications, or employment outside the United States.
• The interaction with the separate $100,000 proclamation payment, which DHS says would be payable in addition where both apply.

The consolidated view is in the 2027 immigration budget.

The legal question

The proposal relies on DHS's statutory fee authorities. Since the Supreme Court ended Chevron deference, courts read those authorities for themselves rather than deferring to the agency's reading; Mandamus.com discusses the shift on its Loper Bright page. That is one reason the outcome of any challenge is hard to predict.

Questions

Is the $103,265 fee payable now?

No. It is a proposed rule. It would apply only after DHS publishes a final rule with an effective date.

Would it apply to H-1B extensions or transfers?

The proposal targets cap-subject petitions. Cap-exempt filings are excluded. Extensions and transfers for workers already counted against the cap are not cap-subject petitions in the ordinary sense; check the final text if one is published.

How does weighted selection work?

Each registration is entered into the pool one to four times according to the wage level of the offered position, with Level IV entered four times.

General information, not legal advice. Rules and processing practice change; verify against the agency's own published figures and take advice on your own facts.